f 


oB|  CODIFICATION 


The  State  of  New  York, 


ROBT.  LUDLOW  FOWLER. 


SECOND  EDITION,  WITH  ADDENDA. 


New  Yohk  : 

MARTIN  B.  BROWN,  PRINTER  AND  STATIONER, 

Nos.  49  AND  51  Park  Place. 

1884. 


UC.S.B  LIBRAE 


INTRODUCTION  TO  SECOND  EDITION. 


At  the  request  of  several  friends  of  Mr.  Field's  Code  I  have 
consented  to  a  reprint  of  my  answers  to  Mr.  Cai-teHs  general 
objections  to  codification.  The  opportunity  has  enabled  me  to 
amend  the  text  of  the  original  in  several  particulai-s  which  further 
reflection  dictated,  and  to  add  important  authorities.  The  alter- 
ations are  not  extensive ;  in  the  reprint,  as  in  the  original,  no 
more  has  been  attempted  than  to  present  the  answers  usually 
made  to  such  objections  to  codification  as  those  so  forcibly 
re-stated  by  Mr.  Carter  in  '*•  The  Proposed  Codification  of  the 
Common  Law.''  In  the  only  two  instances  where  Mr.  Carter 
has  seen  fit  to  make  specific  objections  to  the  "Civil  Code," 
reported  by  Mr.  Field,  there  I  have  endeavored  to  outline  the 
argument  on  the  otiier  side  of  the  question,  but  there  my  under- 
taking ended ;  more  than  this  would  have  been  unwarranted  in  a 
publication  which  professed  to  be  only  an  answer,  not  a  treatise, 

E.  L.  F. 

New  York,  November  1, 1884. 


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http://www.archive.org/details/codificationinstOOfowliala 


PRESCRIPT  TO  FORMER  EDITION? 


In  a  letter  of  the  date  of  January  29th  last,  Mr.  Field  requested  me  to 
undertake  the  preparation  of  an  answer  to  Mr.  James  C.  Carter's  paper  against 
codification,  but  the  time  allotted  was  much  too  brief  for  my  opportunities. 
Since  then  Mr.  Field  has  published  his  "  Short  Response,"  which  has  rendered 
any  further  answer  unneceasary.  Notwithstanding  this,  when  Mr.  Field  learned 
that  I  had  made  some  progress  in  the  direction  indicated,  he  politely  urged  me 
to  complete  and  publish  what  I  had  begun.  I  have  accordinglj'  done  so, 
although  fully  realizing  that  he  will  be  disappointed  with  the  little  I  have  been 
able  to  add  to  the  discussion  concerning  a  greatly  needed  reform. 

R.  L.  F. 

New  York,  May  1,  1884. 


CODIFICATION 


IN  THE 


State  of  New  York. 


The  Philosophic  historians  regard  ci\nilization  as  the  product 
of  certain  forces,  chief  among  which  is  an  unceasing  struggle 
after  truth.  For  truth,  men  contend  to  an  almost  inconceivable 
extent,  and,  in  the  main,  conscientiously;  thus  it  is  that  they 
become  unwitting  factors  in  an  accumulating  civilization.  The 
recognition  of  this  fact  will  serve  to  disembarrass  the  controversy 
concerning  the  Civil  Code  of  New  York  from  that  atmosphere  of 
refined  denigration  of  men  and  measures  into  which  it  has  unfor- 
tunately fallen  : 

"  Sed/acilis  cuivis  rigidi  cemura  cachinni." 

In  any  fair  discussion  of  a  great  public  question  it  is  neces- 
sary to  assume,  in  the  absence  of  proof,  that  the  disputants 
upon  either  side  are  animated  only  by  the  most  elevated  mo- 
tives, or  else  truth  will,  in  the  side  issue,  inevitably  elude  pur- 
suit. In  Xew  York  this  first  canon  of  parliamentary  debate  has 
not  always  been  borne  in  mind,  and  the  result  has  not  been  favor- 
able to  the  merits  of  the  discussion  concerning  the  Code — a  dis- 
cussion which  in  reality  relates  to  one  of  the  greatest  problems  of 
the  time  :  Shall  the  form  of  the  law  be  more  simple  ? 

Codification  is  not  rightly  understood  without  some  reference 
to  the  larger  subject.  Jurisprudence,  Jurisprudence,  towering  as 
it  does,  over  the  cognate  social  sciences,  political  economy  and 
ethics,  or  deontology,  has  always  attracted  to  itself  a  good  share  of 


the  higher  mental  effort.  The  result  of  repeated  investigations  in 
the  direction  of  the  elements  of  jurisprudence  has  been  the  dis- 
covery of  certain  tiaiths  wliich  are  universally  conceded,  and  in 
the  place  of  which  no  person  familiar  with  the  jural  sciences  now 
feels  at  liberty  to  substitute  conflicting  hypotheses.  So  true  is 
this,  that  any  speculation,  however  captivating,  which  disregards 
the  accumulated  knowledge  of  the  modern  scientific  jurists, 
stands  as  little  chance  of  taking  a  permanent  place  in  the  opin- 
ions of  men  as  would  a  treatise  on  the  solar  system. which  ignores 
the  discoveries  of  a  Kepler  or  a  Laplace.  Another  result  of  the 
labors  of  the  scientific  jurists  has  been  u  highly  developed  termi- 
nology with  its  verbal  signs  for  complex  ideas  :  without  recourse 
to  this  received  terminology,  the  most  accurate  reasoner  on  juris- 
prudence must  become,  at  times,  inexact,  even  if  by  a  miracle 
he  escapes  positive  en*or.*  It  is  unnecessary  to  say  that  accu- 
racy upon  a  technical  subject  is  to  be  preferred  to  eloquence  : 

"  *    *    torrem  dicendi  copia  mvltis 
Et  ma  mortifera  est  facundia.''^ 

With  this  apology  for  persistent  reference  to  a  dry  and  tech- 
nical verbiage,  let  us  glance  for  an  instant  at  the  authority  of 
the  received  terminology,  for  it  is  sometimes  said  that  the 
common  law  does  not  pretend  to  any  scientific  place  in  general 
jurisprudence ;  that  it  is  content  to  be  insular  rather  than  cath- 
olic, rugged  rather  than  refined,  and  sensible  rather  than  sci- 
entific. But  this  is  to  forget  that  the  common  law  is  but  a 
single  phase  of  jurisprudence.  In  its  points  of  resemblance,  the 
common  law  responds  to  the  analysis  of  the  elements  of  juris- 
prudence ;  in  its  points  of  difference  only  is  it  self-regulating. 
For  more  than  a  hundred  years  these  points  of  difference  and 
oi  resemblance  have  occupied  the  attention  of  the  English 
jurisprudents.  The  speculations  of  the  English,  however, 
have  stopped  short  of  the  transcendentalism  of  the  Germans, 
and  to-day  the » English  school  of  jurisprudence  is  both  prac- 
tical  and    philosophic,  and   its    teachings    of    vast    importance 

*  As  philosophers  affirm  "that  each  body  of  doctrines  has  its  root  in  some  ancestral  body  of 
doctrines"  (1  Flake's  Cosmic  Philos.,  166)  so,  with  equal  truth  lawyers  may  affirm  that  each 
institute  of  their  science  has  its  historical  antecedent.  Without  reference  to  this  history  of 
the  philosophy  of  law,  any  author,  no  matter  how  brilliant  his  attainment,  will  fall  into  sad 
error  while  speculating  on  the  genesis  of  law. 


9 

to  the  reign  of  law  in  this  country.  It  is  to  such  men  as 
ITobbes,  Bentliam,  Austin,  Maine,  Holland,  Pollock,  Lindley, 
Markby,  Stephen,  Digby  and  Harrison,*  that  all  common  lawyers 
owe  a  debt  of  gratitude,  for  they  have  placed  the  common  law 
upon  a  more  highly  scientific  plane;  they  have  introduced  it 
again  to  philosophy,  from  which  it  has  been  long  separated  by 
archaisms  and  local  accidents ;  they  have  fitted  it  out  with  defini- 
tions and  with  a  tenninology  which  is  equal  to  its  most  advanced 
conceptions ;  they  have  studied  the  law  of  its  growth  and  have 
extracted  the  prime  factors  for  general  every-day  use.  It  be- 
hooves Americans,  therefore,  unless  we  desire  to  stand  as  the 
Asiatics  toward  the  attainment  of  modern  legal  science,  to  take 
note  of  the  labors  of  this  school.  In  the  direction  of  practical 
codification,  the  labors  in  question  are  of  the  utmost  importance, 
for  without  them  we  should  but  imperfectly  conceive  the  subject- 
matter  of  codification. 

The  late  eloquent  ai-gument  by  Mr.  Carter — and  the  liberty  of 
using  Mr.  Carter's  name  should  be  pardoned,  for  he  is  the  spokes- 
man of  the  opposition — does  not  conform  to  the  teachings  of  the 
scientific  jui-ists.  According  to  this  gentleman,  codification  is 
concerned  with  "rules."  He  states  at  the  outset,  "Whoever 
glances  over  the  varying  systems  of  laws  exhibited  by  civilized 
States  will  perceive  that  in  some,  as  in  England  and  with  us,  the 
great  body  of  the  rules  which  determine  the  rights  of  men  in 
respect  to  their  persons  and  their  property,  have  never  been 
directly  enacted  in  a  statutory  form."  This  statement,  while  true, 
is  inexact.  The  matter  with  which  the  jurisprudence  of  the  com- 
mon law  is  concerned  is  law,  and  law  in  position,  not  rules  hi 
2^0886.  A  rule  is  a  very  distinct  conception  from  a  law,  which  is 
a  rule  plus  a  sanction,  or  penalty  imposed  for  its  infraction  by  the 
supreme  political  authority.  The  distinction  pointed  out  may 
seem  hypercritical,  but  in  point  of  fact  it  is  fundamental,  and 
many  of  our  most  erroneous  notions  regarding  codification  are 
directly  attributable  to  its  confusion.  The  faction  who  regard 
mere  rules,  or  the  nebulous  theories  of  text-writers,  as  the  equiva- 
lents of  laws  set  or  imposed  in  one  of  the  authentic  legislative 

*  I  have  included  in  this  enumeration  of  n  few  names  both  the  analytical  and  synthetical,  or 
historical,  jurists,  for  they  are  closely  allied.  No  science  can  exist  by  analysiu  alone,  for 
analysis  is  but  preparatory  to  a  sj'nthesis  of  truths. 


10 

modes,  never  can  be  broiiglit  to  concede  the  feasibility  of  codifi- 
cation. Their  conceptions  of  the  subject-matter  of  codes  are  too 
far  removed  from  the  plane  on  which  all  codification  must  be 
based.  It  is  the  merit  of  the  dominant  English  school  of  juris- 
prudence that  they  have  caused  the  distinction  noticed  to  become 
so  apparent  that  it  is  now  rarely  overlooked  by  modem  law- 
writers.  The  scientific  English  jurists  thus  w^ell  exliibit  the  prac- 
tical bent  of  their  nation,  for  recognizing  that  tlie  limitations  of 
the  jurists'  law  are  with  man  in  political  societies,  their  concern 
with  the  abstractions  concerning  law,  ends  when  they  cease  to  be 
applicable  to  man  in  political  societies.  They  define  with  super- 
lative precision  the  difference  between  a  rale  and  a  law,  and 
in  this  respect  their  analysis  has  been  of  service  to  the  cause  of 
codification. 

At  yet  another  point  does  Mr.  Carter's  opening  statement — 
upon  which,  by  the  way^  the  validity  of  his  entire  argument  rests 
— conflict  with  the  discoveries  of  those  whose  best  energies  have 
been  devoted  to  tlie  analyses  of  the  elements  of  jurisprudence. 
He  states,  in  substance,  that  the  systems  of  law  in  England  and 
America  "rest  upon  an  original  but  ever-growing  body  of 
custom,"  constantly  expounded  and  amplified  bj  a  trained  body 
of  experts.  But  is  this  statement  true  ? — An  unqualified  aflirma- 
tive  comes  from  no  school  of  jurisprudence.  The  statement  is 
much  too  broad  to  receive  the  assent  of  the  most  radical  supporter 
of  customary  law.  The  adhei'ents  of  the  potency  of  customary 
law  may  be  regarded  as  of  two  classes :  those  who  claim  that 
custom,  independently  of  any  action  of  the  courts  or  legislature, 
has  the  force  of  law,  and  those  who  assert  that  the  imprimatur  of 
the  courts  must  be  added  to  the  custom  before  it  attains  the  force 
of  law,  and  then  that  it  acts  retrospectively.  Opposed  to  these 
several  conceptions  are  those  who  deride  the  very  idea  of  custom- 
ary law.  The  adherents  of  the  first  class  are  mainly  to  be  found 
in  Germany.  Professor  Holland  is  the  best  exponent  of  the 
second  class,  as  Austin  is  of  the  opposition. 

No  authoritative  juridical  writer  has  gone  to  the  extent  of 
asserting  with  Mr.  Carter,  that  tlie  great  body  of  the  private 
law  in  England  and  in  America  now  rests  upon  custom.  This 
would  be  far  too  exclusive  a  claim  for  custom.    Xo  doubt  in  cer- 


11 

tain  primitive  stages  of  a  nation's  growth,  as  Sir  H.  Maine's 
rich  and  varied  experience  has  enabled  him  to  detect,  custom 
may  in  itself  have  the  force  of  law,  but  in  the  more 
advanced  stages  of  a  nation,  the  importance  of  custom  declines 
until  at  last  there  comes  a  period  when  all  law  is  written 
law.  It  is  either  written  case-law  or  written  statute-law, 
and  when  written  in  a  particular  way,  written  code-law.* 
In  this  State  the  development  is  such  that  it  may  well  be 
doubted  Avhether  custom  is  even  a  source  of  law  except  in 
the  single  case  of  the  lex  mercatoria  where  it  is  potent 
only,  because,  by  contract,  it  is  magnified  on  the  mercantile 
exchanges  into  prominence.  Even  if  Mr.  Carter  intended  to 
refer  to  custom  as  a  source  of  law,  his  reference  entirely 
overlooks  the  fact  that  custom  has  never,  in  this  State,  been 
in  any  way  a  fertile  source  of  law.  For  example,  the  entire  body 
of  law  promulgated  in  the  courts  of  equity  has  in  no  sense 
a  customary  basis.  Nor  has  that  residuum  of  the  common  law  of 
this  State,  which  is  referable  to  the  common  law  of  England,  an 
existence  here  because  of  custom  ;  it  is  part  of  the  organic  law 
by  express  constitutional  provision. 

Having  thus  roughly  pointed  out  the  distinction  between 
custom  and  law,  and  between  custom  as  a  source  of  law  and  as 
law  in  itself,  the  nature  of  the  laws  which  it  is  proposed  to  codify 
in  this  State  may  be  briefly  summarized :  The  jurists  law  is  the 
law  evolved  either  by  the  supreme  legislature  or  by  its  ministe- 
rial subordinates.  The  analytical  jurists  have  demonstrated  that 
under  any  advanced  type  of  government  laws  are  made  by  the 
legislature  proper  and  by  the  various  subordinate  persons  possess- 
ing law-making  powers.  Among  the  latter  persons  are  the  judges 
who  sometimes  act  in  the  direct  legislative  mode,  as  when  they 
issue  what  is  known  as  rules  of  court,  and  sometimes  in  the  indi- 
rect legislative  mode,  when  they  state  certain  principles,  inde- 
pendent of  the  facts  sub  judice.  The  scope  of  codification  is 
concerned  only  with  laws  evolved  by  the  persons  and  in  the  modes 
indicated,  not  with  custom  nor  with  any  of  the  vague  concep- 
tions of  those  who  regard  codification  of  the  private  law  as 
practically  unattainable. 

*  Maine's  Ancient  Law,  p.  I.?. 


12 

Passing  from  the  consideration  of  tlie  general  to  the  particu- 
lar, Mr.  Carter's  main  objections  to  any  codification  of  the  private 
law  of  New  York  may  be  divided  into  two  classes :  iirst,  those 
which  are  derived  from  liis  reading  of  history ;  second,  those 
which  he  infers  from  a  personal  examination  of  the  inherent  and 
the  political  phases  of  the  common  law.  Among  the  first  class 
is  the  purely  negative  argument  drawn  from  the  failure  of 
England  and  the  various  United  States  to  codify  their  respective 
private  laws,  and  the  consequent  jjresumption  against  the  utility 
of  such  codification.  Among  the  second  class  are  the  arguments 
which  referthe  temporal  and  the  political  prosperity  of  this  country 
and  England  to  the  present  uncodified  condition  of  the  common 
law.  The  friends  of  a  better  arrangement  of  the  law  than  that 
existent  do  not  admit  the  validity  of  any  of  these  arguments. 
Inverting  the  order  of  their  consideration,  we  may  briefly  exam- 
ine the  reasons  why  this  •validity  is  disputed. 

If  the  greatness  of  the  material  prosperity  of  England  and  this 
country  were  in  any  degree  attributable  to  non-codification  of  the 
ius privatum,  some  legitimate  argument  might  be  made  from  the 
failure  referred  to.  But  there  is  no  relation  whatever  between 
the  facts ;  when  a  horse  was  made  consul,  Rome  enjoyed  a  system 
of  private  law  unequaled  for  wisdom  and  equity.*  Political 
results  depend  on  the  condition  of  the  public  law,  not  on  the 
condition  of  the  private  law.  It  is  the  nature  of  its  laws  and 
not  their  codification  Avhicli  either  promotes  or  retards  the 
material  prosperity  of  a  State. 

Nor  can  the  friends  of  law  reform  admit  the  validity  of  Mr. 
Carter's  second  proposition  that  codification  and  absolutism,  and 
non-codification  and  freedom  have  any  relation  whatever.  His 
theory,  that  non-codification  in  free  States  is  attributable  to 
the  fact  that  in  those  States  law  is  evolved  from  the  cus- 
toms of  the  people,  whereas  in  monarchical  States  it  is  evolved 
by  the  crown,  is  predicated  of  a  misconception  of  the  modes 
in  which  laws  are  made  in  all  States,  and  in  disregard  of  all 
that  has  been  written  on  "  sovereignty."  As  has  been  already 
indicated,  Germany   is    the    State  where   the  greatest   possible 

*  Piiillimore's  Dipert.  on  Principles,  etc.,  of  juiisp.  intd.,  1. 


13 

force  is  attributed  by  jurists  to  custom,  and  yet  its  govern 
nient  can  hardly  be  regarded,  according  to  American  notions, 
as  popular.  The  fact  is  that  the  sovereign,  be  it  the  people 
themselves,  or  be  it  the  most  flagrant  absolutist,  make  laws  in  the 
same  legislative  moulds.  The  legislative  power  may  be  distributed 
difl:"erently,  but  under  all  types  of  government,  that  which  pleases 
the  sovereign  alone  has  the  force  of  law.  As  Mr.  Carter  repeats : 
''■  Quod x>rincipi  placuit  legis  habet  vigorem.'^  ^ut  principi  m 
the  technical  sense  means  the  political  sovereign  which  may  be 
demos,^  If  we  substitute  for  principi  the  word  populo,  what 
terror  is  there  in  the  ennobled  maxim  ?  In  this  State,  where 
the  people  make  the  laws,  the  people  alone  codify  them,  and  they 
are  not  likely  to  be  frightened  by  shadows  into  remaining  buried 
under  a  mountain  of  laws,  statute  and  non-statute  —  a  very  Pelion 
on  Ossa  —  because  once  under  other  circumstances  and  conditions 
a  people  with  a  despot  had  a  code. 

If  it  were  even  true  that  codification  and  despotism  and  non- 
codification  and  freedom,  are  so  invariably  associated  as  to 
convey  the  idea  of  cause  and  effect,  a  free  nation  on  the  eve 
of  codification  might  well  hesitate.  But  it  is  not  true.  Switzer- 
land and  France  are  republics,  and  well-ordered  examples  of 
enlightened  and  prosperous  States,  and  there  codification  flourishes. 
It  is  unnecessary  to  call  attention  to  the  invalidity  of  arguments 
which  fail  to  be  true,  when  applied  to  like  facts.  Another  form 
of  this  illegitimate  argument  would  permit  the  allies  of  codifica- 
tion to  attribute  to  codification  the  present  blessings  of  popular 
government  in  France.  But  we  know,  as  Mr.  Webster  almost 
prophetically  pointed  out,  in  the  year  1820,  that  the  present  type 
of  government  in  France  is,  in  all  probability,  the  result  of  the 
abolition  of  primogeniture  and  of  a  liberal  land  tenure.+  Mr. 
Carter's  appeal  to  the  patriotic  bias  thus  contains  a  covert  and 
unjust  implication,  that  in  popular  States  the  condition  of  the  law 
is  preferable  to  that  in  even  the  best  type  of  monarchical  States ; 
yet  in   Sweden  and  in   Belgium,  for   instance,  piivate   law   is 

*  Inst  Just.,  1,  2,  6.  "  Sed  et  quod  principi  placuit,  legis  habet  vigorem  :  cum  lege  regia, 
quae  de  iinperio  elus  lata  est,  populus  ei  et  in  eum  omne  suum  imperlum  et  potestatem 
concessit." 

t  See  note  p.  59,  vol.  1,  Bowen"s  edit.,  de  Tocqueville"s  Democ.  in  America. 


14 

administered  with  fully  as  inucli  cheapness,  dignity  and  justice  as 
it  is  here. 

The  opponents  of  codification  would  fain  believe  that  codifi- 
cation is  an  auxiliary,  at  least,  of  despotism,  but  even  this  is  not 
inherently  true.  It  is  the  nature  of  the  laws  codified  and  not 
codification  which  is  the  auxiliary.  To  amplify  Mr.  Carter's  own 
similitude,  had  Mahomet's  Koran  contained  the  peaeef  id  tenets  of 
the  Divine  Nazarene,  it  could  not  have  aided  a  dream  of  human 
empire.  Codification  of  the  trans-Atlantic  common  law  will  not 
debase  it.  It  contains  germs  which  no  codification  can  destroy  ; 
excrescences  which  codification  may  remove  with  benefit  to  the 
body  politic.  A  code  of  the  private  division  of  the  common 
law  will  have  no  effect  on  the  public  law,  and  it  is  to  the 
jmblic  law  that  we  look  for  our  liberties  and  political  rights- 
Codification  of  the  private  law  will  not  affect  the  constitutions  of 
government,  the  bicameral  legislature,  the  veto,  or  the  power  over 
the  veto,  the  jury  system,  the  judiciary-establishment  working  in 
the  inherited  common-law^  mode,  the  habeas  corpus,  the  bill  of 
rights,  the  inviolability  of  contracts,  the  right  of  compensation  for 
private  property  arbitrarily  taken,  or  successions  ah  intestato, 
including  the  abolition  of  primogeniture,  and  unless  these  things 
are  affected,  by  what  authority  is  it  intimated  that  liberties  will  be 
endangered  by  a  more  compact  form  of  the  private,  as  contradis- 
tinguished from  the  public,  law  ?  Mr.  Carter's  argument  upon 
this  point  may  not  have  been  serious,  it  having  been  intimated, 
by  a  clever  reviewer,  that  in  this  particular  the  danger  feared 
from  codification,  had  some  reference  to  the  votes  of  the  bucolic 
constituencies.  Notwithstanding  this  intimation  it  has  been 
assumed  that  the  danger  in  question  is  honestly  apprehended  by 
Mr.  Carter,  and  issue  has  been  taken  accordingly  with  some  degree 
of  seriousness. 

It  is  likewise  urged  against  a  codification  of  the  private 
division  of  the  common  law  that  it  will  have  a  tendency  to 
increase  injustice  by  reason  of  an  augmented  judicial  inclusion  of 
cases  not  within  the  purview  of  the  codified  law ;  or  else,  that  the 
struggle  of  the  judges  to  exempt  from  the  operation  of  the  Code 
a  case  presenting  distinctive  features  will  be  productive  of  an 
increased  uncertainty  in  legal  administration.     These  alternative 


15 

and  inconsistent  propositions  are  old  phases  of  the  argument 
against  the  so-called  rigidity  of  statute  law.  It  will  be  observed 
that  they  postulate  a  considerable  inefficiency  on  the  part  of  the 
judiciary  as  well  as  in  the  qualities  of  statute  law.  If  it  is  true 
that  in  one  or  other  of  these  propositions  lies  the  whole  philosophy 
of  codification,  the  question  is  a  narrow  one.  Those  who  affirm 
the  superiority  of  an  orderly  arrangement  of  a  jurisprudence  deny 
that  a  code  increases  the  proportion  of  injustice  in  the  given  case, 
if  at  all,  to  such  an  extent  as  to  outweigh  the  benefits  to  be 
derived  from  the  added  certainty  and  the  compactness  of  expres- 
sion found  in  a  code.  In  stating  this  proposition  it  must  not  be 
forgotten  that  it  has  no  reference  to  criminal  administration  which 
is  embraced  in  the  division,  public  law.  In  any  system  of  private 
law  there  can  be  no  greater  evil  tlian  uncertainty  and  in  any 
system  of  public  law,  no  greater  evil  than  injustice.  The  assump- 
tion that  the  judges  will  increase  the  proportion  of  error  by  the 
inclusion  of  exceptional  cases  within  the  common  provisions  of  a 
code  is  unwarranted.  The  administration  of  law  is  usually  a 
struggle  to  include  the  contested  case  within  a  certain  law, 
whether  that  law  has  emanated  from  the  superior  legislative  body, 
or  from  the  inferior  legislative  body — the  judiciary.  The 
interpreting  function  of  a  court  is  always  either  restrictive  or 
extensive,  and  if  it  err  in  the  performance  of  this  function,  the 
proper  checks  still  exist  by  means  of  appeals.  Because  of  codi- 
fication, the  judicial  operations  do  not  change  :  with  a  fearless  bar 
and  an  intelligent  judiciary,  there  will  be  in  the  future,  as  in  the 
past,  the  same  effort  to  arrive  at  exact  justice,  the  same  effort  to 
distinguish  the  given  case  and  possibly  as  great  a  proportion  of 
error,  though  it  is  thought  not.  Yet  the  question  of  codification 
lies  deeper  than  either  of  these  arguments,  being,  whether  the 
sum  of  all  the  advantages  to  be  derived  from  codification  is  not 
greater  than  the  sum  of  all  the  disadvantages  in  remaining  with- 
out a  code  i — Mr.  Carter  nowhere  alludes  to  the  side  of  the 
advantages  which  at  a  later  stage  will  be  outlined  in  this  paper. 

After  brief  allusion  to  those  parts  of  the  common  law  which 
have  been  already  codified,  and  the  qualified  admission  that  so  far 
codes  answer  very  well,  Mr.  Carter  arraigns  any  codification  of 
that  arbitrary  division,  known  as  the  private  law,  as  unscientific 


16 

in  theory.  This  accusation  is  only  perceived,  in  all  its  ful- 
ness, by  eaiploying  antithetical  modes  in  stating  it.  It  must 
mean  that  the  preseiit  arrangement  of  the  private  division  of 
the  common  law  is  superior  to  that  proposed,  or  else  that  no 
new  and  better  arrangement  is  attainable.  That  the  arrangement 
in  a  code  is  the  less  scientilic  one,  is  then  sought  to  be  demonstrated 
by  the  proposition,  that  the  private  department  of  the  common 
law  is  now  embodied  in  the  reports  of  adjudications,  which  are  so 
provisional  in  their  nature  as  not  to  be  disembarrassed  from  the 
particular  groupings  of  fact  on  which  their  elements  depend. 
The  answer  to  this  half-truth  necessitates  a  reference  to  the  mode 
in  wliicii  the  judicial  branch  of  government  works.  A  judge 
in  the  decision  of  a  case  decides,  it  is  true,  only  the  special  case 
before  him,  but  it  is  the  practice  among  the  common-laM'^  judges 
to  formulate  the  reasons  for  this  adjudication.  Those  reasons 
which  turn  upon  the  isolated  facts  of  a  given  case  rarely  have  any 
future  value,  for  the  facts  of  any  two  cases  are  seldom  the  same. 
But  in  the  reasons  which  are  independent  of  the  particular 
facts,  jurisprudents  detect  a  law,  technically  termed  the  ratio 
decidendi* .  Ratio  decidendi  must  not  be  confused  with  dicta, 
which  are  unauthoritative  special  references  to  facts,  nor  with 
ratio  leg  is,  which  is  another  thing.  These  general  state- 
ments of  principles  independent  of  the  particular  groupings 
of  fact,  are  operative  as  laws,  but  as  laws  standing  out  of  true 
position  in  some  old  or  new  chronicle  of  judicial  work,  termed 
reports.  Piled  up  in  all  manner  of  volumes,  thousands  upon 
thousands,  are  these  isolated,  illogical  and  fragmentary  laws. 
Xow  the  adherents  of  codification  simply  insist  that  these 
dispersed  expressions  of  substantive  law  are  susceptible  of 
being  selected  by  skilful  and  logical  persons,  and  when  se- 
lected of  being  classified,  their  inconsistencies  and  redundan- 
cies being  first  expunged.  Certainly  in  common  practice  the 
lawyer  examines  the  reports  with  the  view  of  ascertaining  the 
law  of  his  case;  he  rejects  the  dissimilarities  of  fact  and  he 
extracts  the  law  which  is  always  true.  If  the  lawyer  after  his 
examination  of  the  reports  were  to  give  a  provisional  opinion  as 

*  2  Austin's  Jiiripp..  330:  Holland"*  Jurisp.  ;  Pollock's  essay   "Science  of  Case  Law" 
nufstm. 


17 

to  the  law,  his  client  would  certainly  be  justified  in  promising  a 
proAHsional  fee.  What  the  lawyer  does  in  his  daily  practice,  the 
codifier  does  on  a  larger  scale  ;  both  seek  for  the  law  in  the 
reports,  but  in  the  reports  unfortunately  burdened  with  the 
scholia  of  the  text-writers  and  with  the  wearisome  utterance  of 
many  a  common-place  or  undiscriminating  official.  When  the 
codifier  has  found  these  laws,  he  lodges  them  between  single 
covers  that  common  people,  and  not  logicians  and  experts  alone, 
may  better  apply  them  to  tlie  myriad,  shifting  jjhases  of  human 
affairs. 

One  thoughtless  answer  to  this  account  of  the  task  of  the 
codifier  is  that  every  good  lawyer  knows  these  general  principles, 
these  larger  expressions  of  substantive  law,  and  that  it  is  super- 
fluous to  codify  such  vague  generalities.  But  this  assumption  is 
contrary  to  the  fact ;  no  human  mind  is  capable  of  systematically 
producing  off-hand  the  several  thousand  basic  principles  usually 
stated  in  a  code  of  private  law.  Yet  if  it  is  otherwise,  their  codi- 
fication is  a  duty  which  the  State  owes  to  the  less  gifted  portion 
of  its  citizens ;  to  those  who  cannot  remember  even  a  hundred 
principles,  as  well  as  to  those  who  are  not  conversant  with  law 
at  all. 

Another  answer  denies  with  eager  confidence  the  teachings  of 
the  scientific  jurists,  that  judiciary-made-law  is  in  reality  legisla- 
tion, and  that  judicial  bodies  are  to  be  classified  with  legislatures. 
Mr.  Carter  pronounces  it  "  a  shallow  view,"  because  the  freedom 
of  action  is,  he  thinks,  the  final  test  of  the  legislative  power  and 
the  judges  are  non-free.  But  if  freedom  of  action  were  the  final 
test  of  legislative  power,  the  legislatures  of  constitutional  States 
would  lack  this  supreme  qualification.  In  England  and  in  America, 
legislatures  are  not  free ;  they  are  fettered  by  fundamental 
restrictions,  by  common-law  rules  of  parliamentary  procedure, 
analogous  to  the  rules  of  practice  of  judiciary  bodies  as  well  as 
by  the  inherent  forces  of  the  common  law  in  all  its  entirety  ;  their 
freedom  of  action  is  but  negative,  consisting  in  the  power  not  to 
act,  or  not  to  act  in  a  particular  way ;  they  cannot  substitute 
caprice  for  duty  or  the  positively  wrong  for  the  positively  right. 
Freedom  of  action,  then,  is  not  the  finality  of  legislative  power. 
There  have  been  times,  indeed,  when  the  assertion  by  the 
2 


18 

judiciary  of  freedom  of  action  almost  transcends  any  like 
assertion  of  the  legislature  proper  ;  for  example,  the  conduct  of 
the  court  of  chancery  after  the  passage  of  the  Statute  of  Uses.* 
The  test  of  the  legislative  power  is  not  freedom  of  action  in  the 
law  maker,  hut  the  power  to  pronounce  what  shall  be  law,  and 
the  power  to  impose  a  sanction  for  the  future  infraction  of 
this  law. 

There  is  another  error  which  is  made  by  the  opponents  of 
codification,  as  it  seems  to  those  who  view  codes  favorably  ; 
namely,  the  assumption  that  a  complete  code  must  embrace  a 
statutory  statement  of  the  thousands  of  decisions  predicated  of 
peculiar  groupings  of  fact.  A  true  system  of  codification  is  con- 
cerned only  with  those  larger  principles  indicated ;  those  which 
have  the  force  of  law  universally,  or  independently  of  the  peculiar 
groups  of  facts  to  which  they  have,  or  have  not,  been  applied. 
When  we  reflect  that  already  many  of  these  decisions  have  been 
transmuted  into  statutes  and  that  the  rest  are  embodied  in  leading 
cases,  the  final  arbitraments  of  the  courts  of  last  resort,  we  recog- 
nize the  limitations  of  the  codifier's  work,  and  that  it  is  within  an 
attainable  compass. 

Yet  granting  this  last  fact,  the  iteration  of  the  cherished  idea 
of  the  opponents  of  codes,  that  codification  will  destroy  the 
elasticity  of  the  common  law,  deters  some  persons  from  favoring 
codification.  By  elasticity  in  law  is  probably  meant  the  facile  ap- 
plicability of  laws  to  new  groups  of  fact.  In  this  idea  the  scientific 
jurists  detect  a  fallacy,  a  confusion  between  the  "  terminus  a  quo 
and  the  terminus  ad  quern  of  codification.  Because  codification 
defines  the  general  principles  from  which  all  legal  arguments  start — 
the  terminus  a  quo — it  is  not  necessarily  true  that  it  defines  the  ter- 
minus ad  quem,  the  extent  of  the  application  of  which  these  princi- 
ples are  susceptible."  f  In  simpler  language,  the  error  in  ques- 
tion consists  in  assuming  that  the  Code  provides  for  all  cases  and 
that  new  difficulties,  clearly  beyond  the  equity  of  the  statute,  will 
be  dealt  with  improperly.  If  codification  were  to  put  an  end  to 
the  proper  solution  of  new  difficulties,  or  to  circumscribe  the 
common  law  judicial  powers,  we  might  well  pause  before  entering 

*  Taltarum's  caee  (Year  Book,  12  Ed.,  iv.,  19)  may  also  be  cited. 
t  Holland'!*  Form  of  the  Law,  p.  57. 


19 

upon  a  systematic  codification.  There  is,  however,  no  sucli 
danger  to  be  apprehended.  The  judicial  process  of  evolving 
new  law  by  cross-application  of  old  laws  has  been  going  on  in  all 
States  ever  since  the  primitive  times  when  their  judicial  branches 
of  government  were  separated  from  the  executive.  The  archaeol- 
ogists, who  have  as  intimate  an  acquaintance  with  dead  nations 
as  tliose  nations  ever  had  with  themselves,  show  that  the  Assyrian 
judges  were  diligent  searchers  of  the  Akkadian  law  reports  of 
hundreds  of  years  before,  and  therefore,  that  the  process  of 
extracting  new  law  by  cross-application,  and  by  the  ratio  decidendi 
is  as  old  as  anything  we  know  of  judicial  proceedings.*  It  is 
fair  to  presume  that  in  the  future,  as  in  the  past,  this  purely 
logical  process  will  not  cease  unless  we  concede  a  boundary  to 
mental  activities. 

There  is  no  insurmountable  difficulty  in  codifying  private 
law,  and  by  private  law  is  meant  that  which  Mr.  Carter  himself 
would  seem  to  consider  private  law  in  a  division  of  any  body  of  law 
into  public  and  private.  It  must  be  borne  in  mind  that  this  division 
of  law  into,  public  and  private,  is  purely  scholastic  or  fanciful ; 
the  Germans  include  in  private  law,  the  law  of  crimes,  and  to  them 
public  law  means  Staatsrecht,  or  constitutional  law.  Mr.  Carter's 
ingenuous  statement,  that  he  is  not  aware  that  the  distinction 
between  public  and  private  law  has  hitherto  been  dwelt  upon  in 
the  discussion  concerning  codification,  contains  a  singular  admis- 
sion. The  one  distinction  never  lost  sight  of  in  any  systematic 
view,  or  arrangement,  of  a  body  of  law  is  this  very  division  into 
public  and  private  law.  It  is  the  basis  of  Holland's  great  con- 
tribution to  jurisprudence  which  though  not  entitled  a  work  on 
codification  is  generally  recognized  as  the  ablest  presentation  of 
that  view  which  would  make  rights,  and  not  duties,  the  basis  of 
a  scientific  codification.^  If  we  run  the  division  line  of  law  into 
public  and  private  where  Mr.  Carter  would  place  it,  there  is  no 
more  difficulty  in  codifying  the  law  on  the  one  side  of  the  division 
tlian  there  would  be   in  codifying  the  law  on  the  other  side  of 

*  The  Akkadians,  or  Accadian«,  occupied  much  the  same  relation  to  the  Assyrians  in  liter- 
ature, lanouageand  art  that  ancient  Rome  bears  to  the  modem  Romance  nations.  The  record 
of  decisions  of  the  Akkadian  judges  seems  to  have  been  preserved  upon  clay  rolls  engraved 
with  a  style. 

tChap.  6,  part  1,  Wise's  Outlines  of  Jurisp. 


20 

this  arbitrary  line.  The  difficulty  supposed  is  referable  entirely 
to  indistinct  conceptions  of  the  scope  of  codification  and  of  its 
true  limitations.  It  has  never  been  claimed  for  any  modem  code, 
much  less  for  the  Civil  Code  of  New  York,  that  it  was  to  be  the 
exclusive  repository  of  all  private  law,  past,  present  and  future. 
No  code  can  ever  accomplish  so  great  a  task,  and  any  attempt  to 
accomplish  it  will  prove  a  disastrous  failure.  What  has  been 
claimed  for  the  Civil  Code  of  Xew  York  may  be  referred  to 
when  Mr.  Carter's  special  pleas  against  all  codification  have  been 
first  noticed. 

The  great  force  of  the  example  of  those  nations  which  have 
already  resorted  to  codification  is  always  sought  to  be  broken  by 
the  enemies  of  codes.  While  the  form  of  their  arguments  differ, 
they  almost  invariably  concede  something  to  the  historical  par- 
allels, for  sucli  the  example  of  those  nations  may  be  regarded. 
Mr.  Carter,  insisting  that  the  example  of  Rome  in  particular 
is,  in  no  degree,  illustrative  of  present  exigencies  in  the  State 
of  New  York,  is,  however,  unwilling  to  concede  the  usual 
modicum. 

Any  attempt  at  a  philosophical  consideration  of  the  Roman 
law  is  no  light  matter.  It  is  usually  regarded  as  an  adytum 
which  those  who  are  not  votaries  do  not  disturb.  But  the  rule 
in  this  respect  having  been  ruthlessly  broken  by  the  infer- 
ence indicated,  it  may  with  some  propriety  be  diffidently  sub- 
mitted that  the  highest  modern  authorities  do  not  coincide 
with  Mr.  Carter's  deductions  from  the  example  of  Rome. 
Even  Gibbon,  whose  masterly  analysis  of  the  purely  external 
phases  of  Roman  law  is  familiar  to  most  educated  people, 
affords  slender  basis  for  the  extreme  deductions  of  Mr.  Carter,, 
and  since  Gibbon's  famous  chapter,  ^  a  careful  and  minute 
modern  scholarship^  has  elucidated  the  jurisprudence  of  Rome, 
in  a  manner  Gibbon  but  faintly  conceived.  ^  A  nation's  law  is  &o- 
entirely  the  expression  and  result  of  its  peculiar  civilization, 
that  to  be  studied  with  success  it  must  be  studied  historically. 
This  is  especially  true  of  Roman  law,  for  the  Corpus  iuris  civilis 

'  Written  circUer,  a.  d.  1784. 

2  The  institutes  of  Gains  were  discovered  by  Niebuhr  in  1816.    Even  Gibbon's  famons- 
arransement  of  the  eras  of  Roman  law,  followed  by  Hugo,  is  now  altered. 

3  Tomkins  and  Jencken's  Modem  Rom.  Law,  Pref.  xi. 


21 

is  an  historical  document ;  '  Mr.  Carter  Has  recognized  tliis  fact 
and  has  outhned  rapidly  the  place  which  he  conceives  the  Jus- 
tinian compilations  ^  occupy  in  the  history  of  Rome.  For  this 
purpose  he  begins  with  the  Code  of  the  Decemvirs,  and  intimates 
that  this  early  specimen  of  the  codification  of  private  law  was 
found  so  inelastic  that  it  was  subtly  evaded  by  the  fictions  of 
the  praetors  and  by  the  operations  of  the  professional  jurists. 
Whence  he  deduces,  that  all  codification  of  private  law  must 
prove  a  failure.  He  likewise  intimates  that  the  Justinian  com- 
pilations, when  analyzed,  furnish  no  adequate  data  in  support  of 
the  proposed  codification  of  the  private  law  of  New  York.  The 
various  positions  of  his  argument  are,  however,  too  familiar  to 
need  a  preliminary  repetition. 

In  order  to  ascertain  whether  the  Decemviral  Code  was,  as 
Mr.  Cartei^'s  argument  plainly  infers,  an  error  in  the  policy  of 
Koman  legal  development  we  must  recall  the  facts  which  com- 
pose its  environment.  The  literary  world  was  first  enabled  to 
penetrate  that  historical  nox  arcana,  the  kingly  period  of  Roman 
history,  by  the  genius  of  Barthold  Niebuhr,  but  since  his  day  a 
fiood  of  light  has  been  thrown  upon  the  early  history  of  Italy, 
and  now  its  monuments  stand  forth  with  clearness  and  in  some 
sort  of  perspective.  Yet  the  clearness  is  still  comparative, 
clouded,  as  it  were,  with  enigma,  or  with  that  dim  obscurity  which 
must  to  some  extent  envelop  a  pre-historic  age.  Not  only  the 
origin  of  the  Decemviral  Code  is  uncertain,  but  even  its  contents, 
two-thirds  of  it  only  having  been  restored  from  scattered  frag- 
ments by  the  labors  of  the  exegetical  and  the  historical  jurists. 
Whatever  its  dubious  origin  may  have  been,  this  primitive  code 
contains  little  or  no  argument  either  for  or  against  modem  codi- 
fication, although  it  is  a  most  potent  witness  to  the  advantages  of 
fixity  and  certainty  in  tb.e  basis  of  a  nation's  jurisprudence. 
The  Decim viral  Code  contained  the  germs  of  the  private,  as  well 

>  Intd.  Cumin's  Civ.  Law. 

-  In  deference  to  Professor  Amos'  criticism  (repeated  bs'Mr.  Carter)  of  Mr.  Field's  introduc- 
tion to  the  Civil  Code,  I  liave  refrained  from  using  the  "  Code  Justinian  "  as  a  convenient 
English  designation  for  the  entire  Corpus  iuris.  I  do  not.  however,  mean  to  be  understood  as 
assenting  to  the  propriety  of  Prof.  Amos'  criticism.  Mr.  Field's  deference  to  popular,  rather 
than  to  technical  custom,  is  habitual  with  him  and  in  the  use  of  the  "Code  Justinian  "  as  iiomen 
collectivum  of  the  entire  Corpus  iuris,  Institutes,  Digest,  Code  and  Novells.  he  has  the  sanction 
of  Austin,  Story  and  other  writers  who  certainly  knew  what  every  lawyer  knows  that  the 
Corpus  turis  does  not  consist  of  the  code  alone. 


22 

as  of  the  public,  law  of  Rome.  Fons  omnispublicipinvatique  iuris,  ^ 
Livv  called  it,  and  Professor  Moyle  has  lately  said  of  it,  "  that 
English  lawyers  in  particular  will  fully  appreciate  the  advantage 
which  was  secured  by  this  expression  of  the  law  in  a  more 
scientific  and  therefore  convenient  form  than  that  in  which  it  had 
liitherto  been  clothed." ^  Momransen  speaks  of  it  as  "  an  invalu- 
able basis," 3  and  certainly  no  further  testimony  to  the  wisdom 
of  its  inception  can  be  necessary.  The  tenacity  with  which  the 
liomans  clung  to  this  basis  of  their  national  law  is  one  of  the 
most  extraoixiinary  facts  in  the  history  of  jurisprudence,  and  it  is 
surely  incorrect  to  refer  its  gradual  subsidence  to  the  mal-adapta- 
tion  to  human  needs  of  written  law. 

For  the  purpose  of  indicating  the  error  contained  in  the 
assumption  that  the  Decemviral  Code  was  ultimately  swept 
away,  because  written  law  was  too  inelastic  to  be  readily  suited  to 
the  practical  work  of  administering  justice,  let  us  briefly  review 
the  leading  facts  connected  with  it :  In  the  one  thousand  years 
which  elapsed  between  the  Decemviral  Code  and  the  compila- 
tions of  Justinian,  an  insignificant  community  had  become,  step 
b}^  step,  first  the  Italian  hegemony  and  finally  the  monarch  of  the 
world,  but  with  Theodosius  the  supremacy  of  Rome  began  to 
decline  although  its  power  and  influence  were  destined  to  survive 
through  its  laws.  It  is  instructive  that  through  all  this  vast 
cycle  of  rise,  C(jnque8t  and  decline,  the  Decemviral  Code 
remained  the  basis  of  Roman  juris|)rudence.  It  is  not  surpris- 
mg  that  a  code  well  adapted  to  Latium  should,  ultimately,  in  the 
course  of  centuries,  fail  to  respond  to  the  needs  of  a  vast  empire  ; 
nor,  is  it  strange  that  laws  well  suited  to  a  primitive  tribe  should 
fall  short  of  meeting  all  the  multitudinous  requirements  of  a 
growing  and  progressive  nation.  Yet  so  persistently  were  the 
Romans  in  favor  of  the  stability  of  law  that  they  preserved  the 
letter  of  their  first  code  after  edietal  legislation  had  swept  its 
substance  away.  At  the  time  of  the  promulgation  of  the  code  of 
the  first  decemvirate  (b.  c.  451),  the  territorial  dominion  of  that 
we  now  call  Rome,  in   obedience  to  later  dictates,  was  insignifi- 

1  Livy  III.  34. 

2  Imperatoris  lustiniani  Institutionep.  Moyle,  Intd.  14. 

3  ]  Monnnsen's  Konie,  SOT. 


23 

cant ;  the  last  Yeientine  war  had  not  even  been  fought.  But 
in  Cicero's  day  (b.  c.  100)  the  entire  Mediterranean  was  within 
Roman  territory ;  the  legionaries  liad  triaraphed-  throughout 
Macedonia  and  Greece,  in  Asia  and  in  Africa  and  in  Hispania 
to  the  Pillars  of  Hercules,  the  gate  of  the  ancient  unknown. 
The  crowds  of  foreigners  who  had  meanwhile  swarmed  to  the 
Roman  hive,  necessitated  changes  in  the  early  law,  for  the  ius 
civile  had  no  reference  to  strangers.  Consequently  the  prsetor 
peregrinus,  a  kind  of  magistrate  having  jurisdiction  over 
foreigners,  was  estabHshed  (b.  c.  247).  This  prsetorship  as  well 
as  the  older  one,  the  urban  praetorship,  the  aediles,  the  pro-con- 
suls and  the  pro-praetors  each  possessed  the  power  of  legislation, 
ills  edicendi^,  a  subdivision  of 'the  kingly  function.  The  prsetor 
did  not  sit  as  judge  at  a  Roman  trial ;  he  acted  as  the  president 
of  the  court,  but  had  no  voice  in  the  sentence ;  he  had  the 
impprium  but  not  the  jurisdictio.  By  these  authorities  it  was  that 
the  primitive  law  was  enabled  to  be  subjected  to  those  impulses 
which  ultimately  greatly  changed  its  constituency,  if  not  its  form. 

To  attribute  the  almost  imperceptible  repeal  or  subsidence  of 
the  Decem  viral  Code  to  judicial  action  is  to  misapprehend  a 
curious  phase  of  Roman  legal  development.  It  has  not  always 
been  the  case  that  the  legislative  powers  have  been  separated 
from  the  other  powers  of  government.  In  primitive  and  archaic 
types  c>f  government  very  strange  distributions  of  governmental 
power  have  taken  place.  Modem  conceptions,  it  must  not  be 
forgotten,  rarely  apply  to  ancient  institutions :  To  those  familiar 
with  the  brief  and  recent  constitutional  history  of  the  Province 
of  New  York,  this  fact  will  be  readily  apparent,  for  prior  to  the 
war-for-independence,  the  crown-governor  possessed  and  asserted 
legislative,  as  well  as  judicial  and  executive,  powers.  ^ 

The  fact  that  a  species  of  legislation  and  not  judicial  impulse 
was  the  great  power  which  gradually  changed  the  early  Roman 
law,  as  tirst  expressed  in  its  primitive  code,  is  not  inconsistent 
with  that  other  fact  which  Sir  H.  Maine  has  made  so  familiar 
to  us  all,  that  fiction  is  one  of  the  great  elements  of  change  in 

1  Ius  edicsre  was  to  declsre  the  law  in  a  general  manner ;  ivs  dicere  was  to  organize  the 
formula.  .    ,        ,     ,    . 

"  The  present  jurisdiction  of  the  Supreme  Court  of  New  York,  is  largely  derived  from  an 
edict  of  governor,  Lord  Bellomont.  promulgated  in  1699. 


24 

the  rigidity  of  any  particular  body  of  law.  By  fiction,  however, 
this  great  vniter  means  something  quite  different  from  that  which 
an  English-sjieaking  lawyer  ordinarily  means.  He  means  any 
false  assumption  of  fact  made  by  a  magistrate.  ^  Whether  the 
magistrates  in  the  case  of  Eome  acted  judicially  or  as  legislators 
when  they  resorted  to  particular  fictions,  Professor  Maine  does 
not  always  stop  to  particularize,  though  he  would  himself  sharply 
discriminate  between  the  several  functions.  It  is  unquestionably 
true  that  the  praetoj'S  and  the  other  Roman  magistrates  frequently 
resorted  to  fictions  as  the  ratio  legis  embodied  in  their  edicta, 
and  that  even  Gaius  does  not  always  recognize  these  edicts  as 
types  of  legislative  acts.  2  But  in  the  days  of  Gaius,  jurispru- 
dence had  not  attained  to  that  philosophic  analysis  of  its  elements 
which  is  the  distinguishing  feature  of  the  higher  jurisprudence 
of  this  day.  3 

It  is  hardly  possible  in  any  rapid  survey  of  the  development 
of  Roman  private  law  during  so  long  a  period  as  one  thousand 
years,  to  summarize,  as  Mr.  Carter  has  done,  conditions  by  gen- 
eral statements  of  fact.  What  is  true  of  to-day  fails  to  be 
true  of  to-morrow.  Mr.  Carter  has  given  prominence  to  what 
he  regards  as  an  historical  fact,  that  the  greatest  development 
of  Roman  private  law  was  due  to  an  unofiicial  lawyer-class,  and 
not  to  the  usual  law-making  or  legislative  powers  of  government. 
He  regards  the  Roman  magistrates  as  ephemeral  politicians,  dom- 
inated by  the  lawyers  of  tlie  day,  and  in  these  respects  he  recognizes 
a  likeness  to  the  unsystematic  development  of  the  private  division 
of  the  jurisprudence  of  English-speakmg  peoples.  If  this  hy- 
pothesis is  true,  any  systematic  improvement  in  the  law  of  Rome 
was  due  not  to  the  State  but  to  the  chance  interference  of  the  juris- 
consults, an  imoflicial  class  of  law-makers  as  Mr.  Carter  would 
have  us  believe.  This  mere  re-statement  of  the  moral  Mr.  Carter's 
argument  tends  to  convey,  shows  that  it  appears  to  be  based,  nay, 
is  based,  upon  a  misconception  of  the  modes  in  which  the  devel- 
opment of  the  2)rivate  law  of  Rome  actually  occurred.   No  doubt 

1  Ancient  Law.  p.  24. 

2  Poste'g  Gaius,  36. 

3  '•  In  the  gy.stematic  exhibition  of  tlje  law,  the  Romans  were,  comparatively  speaking,  very 
feeble.  In  this  respect  they  are  greatly  excelled  by  the  modems."— Tompkins'  Inst,  of  Rom. 
Law,  Part  I.  p.  10.5. 


25 

the  jurisconsults  were  a  powerful  element  in  this  development, 
but  thej  were  an  element  which  the  State  ultimately  converted 
into  a  legislative  element,  nurturing  and  directing  it  so  as  to  adapt 
it  to  public  purposes.  Nor,  is  it  more  true  that  the  regular  law- 
making power  of  the  Roman  State  was  in  anv  considerable  degree 
in  the  hands  of  evanescent  or  incompetent  politicians  who  were 
dominated  wholly  by  lawyers.  Sir  H.  Maine,  an  authority  who 
may  be  trusted,  says  the  praetor  himself  was  generally  a  jurist. 
Certainly  Papinian  held  high  public  office  under  Marcus  Aurelius 
and  both  Ulpian  and  Paulus  were  among  other  things  praetorian 
prefects  when  that  office  was  largely  civil  in  character,  while 
Quintus  Mucins  Scsevola,  the  founder  of  scientific  jurispru- 
dence, was  consul  1  in  the  year  b.  c.  95.  Undoubtedly  at  every 
stage  of  Roman  history  there  were  jurists  who  were  praetors,  just 
as  there  were  praetors  who  were  both  politicians  and  jurists.  In 
this  respect  the  development  of  Roman  law  was  not,  according  to 
American  standards,  abnormal.  There  is  one  phase,  then,  in  the 
development  of  Roman  private  law  which  Mr.  Carter's  paper 
does  not  emphasize,  although  it  is  important  in  view  of  the  rela- 
tion it  bears  to  the  Justinian  compilations.  I  refer  to  the  extra- 
ordinary legislative  power  transferred  by  the  Roman  State  to  the 
jurisconsults.  2 

The  craft  of  Augustus,  who  found  it  impossible  to  destroy  the 
influence  of  the  jurisconsults,  suggested  a  way  in  which  this  pow- 
erful order  might  be  allied  to  the  new  imperial  system.  ^  Prior  to 
this  time,  the  responsa  or  opinions  of  the  jurisconsults  had  great 
authority  but  no  binding  force  as  law.^  Unless  we  understand 
the  change  Augustus  instituted  by  this  remai-kable  delegation  of 
the  legislative  power  to  certain  learned  men,  we  shall  unhappily 
miss  one  of  the  great  features  in  the  development  of  the  jurispru- 
dence of  Rome.  Mommsen,  generalizing  in  this  connection,  says  : 
"  Apart  from  the  more  general  political  conditions  on  which 
jurisprudence  also,  and  indeed  jurispnidence  especially  depends, 
the  causes  of  the  excellence  of  the  Roman  civil  law  lie  mainly  in 
two  features :  first,  that  the  plaintiff  and  defendant  were  specially 

1  The  functions  of  consuls  differed  greatly  at  different  epochs. 

2Dig.  1,  2.  47. 

slmperatoris  lustiniani  \n9i.\  Moylo's  Intd.,  50. 

4  Mackeldev's  Rom.  Law,  iX.  * 


26 

obliged  to  explain  and  embody  in  due  and  binding  form,  the 
grounds  of  the  demand  and  of  the  objections  to  comply  with  it ; 
and  secondly,  that  the  Romans  appointed  a  permanent  machinery 
for  the  edictal  development  of  their  law,  and  associated  it  imme- 
diately with  practice  *  -sf-  *  *  by  the  latter  they  prevented 
incapable  law-making  so  far  as  such  things  can  be  prevented  at 
all."i 

Notwithstanding  Mommsen's  eulogium  of  Roman  methods  of 
legislation,  and  there  can  be  none  higher,  it  may,  at  this  point,  well 
be  doubted  whether  the  lawyer-class  of  a  State  make  the  safest 
body  of  legislators,  and  whether  they  are  even  through  the  regular 
channels  of  their  avocation,  the  best  means  of  developing  a  grand 
system  of  jurispnidence.  The  functions  of  the  scientific  legislator 
are  not  seldom  confused  with  those  which  pertain  to  the  lawyer 
as  such,  and  yet  they  are  most  distinct.  It  is  a  common  opinion 
among  people  who  are  not  lawyers — and  they  argue  that  for 
eveiy  lawyer  there  are  a  million  other  men — that  the  notions 
of  most  lawyers  are  by  professional  habit  too  circum- 
scribed to  enable  them  to  take  wide  or  beneficent  views  of 
matters  not  immediately  within  the  naiTOW  range  of  their 
little  personal  activities. ^  But  it  is  unfair  to  thus  generalize, 
for  the  exceptions  to  this  questionable  rule  have  been  so  fre- 
quent ;  although,  on  the  other  hand,  it  is  manifestly  most  fair  that 
the  beautiful  picture,  which  Mr.  Carter  has  drawn  for  us,  of  the 
development  of  law  by  a  trained  lawyer-class  only,  should  be  so 
stated  that  all  sides  of  a  public  question  may  be  properly 
considered. 

Continuing  the  discussion  concerning  the  iiiris  consulti  and 
the  nature  of  their  influence  on  Roman  law,  it  will  be  recalled 
that  even  before  the  time  of  Augustus  their  then  unauthentic 
res])onsa  had  become  so  diffuse  that  Julius  Caesar,  as  well  as 
Cicero,  had  perceived  the  necessity  of  some  sort  of  redaction  by 
eliminating  the  pai'ts  of  the  smallest  value.  After  Augustus  a 
like  difficulty  arose  with  the  responsa  signata^  the  now  quasi- 
legislative  acts  of  the  autliorized  jurists.  The  contrariety  and 
opposition  of  so  many  individual  law-givers  began  to  be  confusing 

I  I  Mommsen's  Rome,  555. 
,  2  Herbert  Spencer's  Soc'.ologj",  "Cla«s  Bias,"  HAl. 


27 

to  legal  administration.  Hadrian  added  to  the  confusion  by 
giving  the  force  of  law  to  the  writings  of  the  systematic  writers. 
Several  attempts  were  made  to  remedy  the  confusion  incidental 
to  this  type  of  laws,  and  in  a.  d.  426  the  law  which  Hugo  called 
the  "  citation  law,"  was  issued  by  the  Emperors  Theodosius  II. 
and  Valentinian  III,,  declaring  that  the  majority  of  the  opinions 
of  the  authorized  jurists  should  thereafter  determine  the  law,  and 
that  when  they  were  equal,  Papinianus  should  prevail :  "  Ubi 
autem  diversce  sentice  prof eruntur,  potior  numerus  vincat  auctorem, 
vel  si  numerus  aequalis  sit,  ejus  partis  prcecedat  auctoritas  in  qua 
excellent  isingenii  vir  Papinianus  emineat,  etc."  There  is  some 
dispute  among  the  critical  as  to  whether  in  fact  this  "law  of 
Citations  "  did,  as  Gibbon  states,  and  Mr.  Carter  after  him,  have 
the  effect  of  reducing  the  number  of  the  iuris  auctores  to  five, 
Gaius,  Papinian,  Ulpian,  Paulus  and  Modestinus.  There  is  a 
^posteriori  authority  for  inferring  that  such  could  not  have  been 
the  intention  of  the  "  law  of  Citations,"  for  Justinian's  Constitu- 
tion, in  reference  to  the  compilation  of  the  Digest,  instructs  the 
compilers  to  make  excerpts  from  the  authorized  jurists  only, 
and  acting  under  this  commission  the  compilers  actually  selected 
thirty-nine.^ 

Without  venturing  further  into  the  precincts  of  those  compe- 
tent to  express  opinions  upon  such  delicate  questions  as  that  just 
noticed,  enough  may  now  have  been  stated  to  show  that  the 
private  law  of  Rome  was  most  influenced  by  written  law,  but  by 
written  law  of  a  peculiar  type,  and  that  its  development  was  not 
abandoned  by  the  State  wholly  to  chance  or  to  the  whim  of  those 
who  chose  to  play,  dilettante-fashion,  with  the  development  of 
private  law.  From  the  time  of  the  last  rescript,  the  "  law  of 
Citations,"  to  the  reign  of  Justinian,  in  the  Eastern  Empire,  was 
little  over  a  hundred  years,  and  during  this  period  matters  went 
from  bad  to  worse  :  it  was  the  reign  of  diabolical  confusion  by 
reason  of  the  great  wealth  of  authority  which  the  parties-litigant 
might  cite  upon  any  shade  of  legal  discussion.  This  confusion 
was  augmented  by  the  continued  irregular  extensions  of  the 
Constitutions   to    those   departments    of   law   which   had   been 

'  Imperatoris  lustiniani  Inst.,  Moyle's  Intu.,  59. 


28 

formed  by  the  responsa  prudentium  and  the  sensentice  of  the 
systematic  writers,  tlie  iuris  auctores.  One  law-making  power 
thns  clashed  with  another.  Constantine  had  put  an  end  to  the 
praetorian  function  of  harmonizing  the  principles  of  law  and 
equity  ;  the  medium  of  making  law  by  the  responsa  of  the  juris- 
prudents, had  died  with  Maximian  {circ.  a.  d.  305),  so  that 
imperial  legislation  at  last  became  the  only  medium  by  which 
changes  could  be  effected  in  the  positive  law.^  The  mass  of  the 
Constitutions,  as  the  laws  emanating  directly  from  the  Emperor 
himself  were  called,  soon  became  very  great.  Yarious  attempts 
between  the  time  of  Constantine  and  that  of  Justinian  had  been 
made  to  systematically  compile  these  Constitutions,  notably  the 
Codex  Gregorianus  {circ.  a.  d.  295),  the  Codex  Hkrmogenianus 
(circ.  A.  D.  365,  398)  and  the  Codex  Theodosianus  {circ.  a.  d. 
439).  Still  these  statutes  multiplied.  Justinian's  reform  was 
intended  to  remedy  the  confusion  in  both  branches  of  the 
ius  scriptwni,  and  to  harmonize  the  Constitutions  with  that 
system  of  pseudo-statutes  which  had  been  promulgated  through 
the  medium  of  the  responsa  and  sententice  of  the  jurists.^ 
This  task  was  accomplished  to  some  extent  in  the  Pandects. 
It  is  not  necessary  to  repeat  weL  known  details  concerning  the 
precise  nature  of  the  material  composing  Justinian's  compilations. 
The  result  has  been  applauded  from  the  revival  of  learning  until 
the  present  day,  and  it  would  be  a  curious  idiosyncrasy  to  attempt 
to  take  a  new  view  of  so  meritorious  a  performance,  comparatively 
speaking,  as  the  Corpus  iuris  civilis.  Enough  has,  perhaps,  been 
stated  to  base  a  conclusion  quite  at  variance  with  that  which  the 
reader  must  arrive  at  after  a  perusal  of  Mr.  Carter's  survey  of  the 
same  work,  and  no  more  has  been  attempted. 

To  attribute  to  Justinian  any  imperialistic  scheme  in  the  law 
reform  which  he  completed  is  to  be  at  variance  with  opposite  de- 
ductions which  may  be  made  from  the  same  state  of  facts.  Theo- 
dosius  and  othei-s  had  designed  to  undertake  this  very  reform  in  a 
spirit  which  cannot  be  questioned ;  so  that  we  must  always  postulate 
the  necessity  of  reform  even  when  we  imagine  the  motive  of  Jus- 


1  Moyle's  Inf^t.  Iiitd.  57,  et pfliinin. 

2  There  is  an  abundance  of  authority  for  regarding  the  dogma  of  the  jurists  as  translated 
into  statutes  at  certain  epochs  of  Roman  lustorj-.  See  Poste's  Gaius,  pp.  37,  144,  for  ready  refer- 
ence, though,  indeed,  not  the  most  ajiposite. 


29 

tinian  in  executing  it  to  have  been  sinister.  But  all  the  argu- 
ments which  those  in  fav^or  of  codification  draw  from  tlie  Justinian 
compilations  are  quite  opposed  to  those  Mr.  Carter  would  wish  to 
draw.  The  Pandects  did  embrace  the  private  law  of  the  Eastern 
empire  in  an  authoritative  legislative  version  and  to  this  extent  it 
is  illustrative  of  the  present  purpose  in  New  York.  That  the 
Pandects  do  not  respond  to  modern  notions  of  statutes  is  hardly 
argumentative  when  we  consider  that  the  responsa  and  sententice 
of  which  the  Pandects  were  composed,  were  not  themselves  in  the 
form  of  statutes,  though  they  became  operative  as  statutes ;  '  legis 
vicem  obtinent.^  This  is  but  another  instance  of  the  necessity  of 
considering  that  laws  in  all  ages  are  not  expressed  in  the  same 
modes  and  that  formerly  they  were  not  habitually  expressed  in 
imperative  terms.  Nor,  is  it  strange  that  Justinian's  collabora- 
teurs,  in  arranging  the  Pandects,  adhered  to  the  ancient  form  of 
the  sententice  a,nd  responsa,  preferring  to  leave  them  what  they 
always  had  been,  after  the  State  had  officially  ratified  them,  stat- 
utes in  effect  but  not  in  form  or  expression.  It  is  not  necessary 
to  point  out  to  any  one  familiar  with  the  discussion  that  this  plan 
was  adopted  only  after  mature  consideration. 

In  reality  there  is  no  connection  between  the  fall  of  Rome  and 
the  redaction  and  consolidation  of  the  Roman  law  under  Jus- 
tinian. The  universal  imperium  of  Rome  had  departed  long 
before  Justinian,  the  empire  having  been  divided  in  a.  d.  395, 
more  than  a  hundred  years  before  that  barbarian  Sclav  had 
ascended  the  throne.  Justinian's  subjects,  whatever  they  were, 
were  not  Roman.  To  any  true  lover  of  Gibbon's  masterpiece  its 
very  title  conveys  the  fact  that  Rome  had  fallen  before  the  Jus- 
tinian era  began.  Another  great  English  historian  has  beautifully 
pointed  out  the  extreme  difficulty  in  determining  when  Roman 
history  ends,  it  glided  so  imperceptibly  into  the  Middle  Ages,  but 
the  vulgar  and  therefore  the  more  conspicuous  boundary,  is  placed 
in  A.  D.  476,  some  fifty  yeai-s  before  Justinian's  great  reform. 

A  word  upon  the  duration  of  Justinian's  redaction  of  the 
ancient  private  law  of  Rome,  and  this  branch  of  the  subject, 
already  unjustifiably  long,  may  be  abandoned  to  those  whose 
tastes  and  acquirements  are  adapted  to  its  discussion.  The 
authorities  are  not  at  one  upon  the  statement,  early  made  by  its 


30 

enemies,  that  the  Corpus  iuris  civilis  was  soon  either  ignored  or 
superseded  by  its  contemporaries  and  their  successors.  Ever  since 
its  promulgation  tliere  has  been  an  anti-Justinian  party,  opposed 
to  the  work  which  Justinian  wrought.  By  them  it  was  first 
asserted  that,  in  some  respects,  Justinian  himself  superimposed 
amendments  upon  the  Corpus  iuris  civilis  from  motives  of  mer- 
cenary traffic  in  justice.  But  other  persons,  fortunately  for 
human  nature,  deny  this  to  be  the  fact.  That  the  Corpus  iuris 
civilis  was  soon  ignored  or  superseded,  is  also  at  issue,  and  it  is 
doubtful  whether  Professor  Hadley's  interesting  lectures,  deliv- 
ered before  the  undergraduates  of  Yale  and  full  of  striking 
antitheses  calculated  to  arrest  their  attention,  are  entitled  to 
he  regarded  by  Mr.  Carter  as  the  controlling  authority  npon 
this  point.  Professor  Hadley  himself  never  published  his  lec- 
tures and  was  not  regarded  as  a  high  authority  upon  Koman 
law.  But  if  he  is  adequate  authority,  he  is  not  confirmed  in 
this  statement  by  Savigny,  Mackeldey,  Ortolan,  deFerriere, 
Cumins,  or  Tomkins,  still  higher  authorities  upon  this  branch  of 
the  history  of  Koman  law.  By  these  last-named  writers  it  is  as- 
serted that  the  Corpus  iuris  of  Justinian  maintained  its  legal 
effect  with  very  little  variation  for  at  least  six  hundred  years 
after  its  promulgation.  The  manner  in  which  it  finally  became 
the  basis  of  the  modern  law  of  Europe,  Savigny  has  fully  re- 
vealed to  students  of  jurisprudence  and  many  lay-writers  to  the 
world  at  large. 

Notwithstanding  their  debt  to  the  Civil  Law,  the  English- 
speaking  lawyers  alone  have  been  tardy  in  paying  their  reckoning 
to  the  most  scientific  source  of  the  common  law ;  and  yet  there 
have  always  been  exceptions  to  this  rule.  The  merits  of  the 
Corpus  iuris  and  its  important  I'elations  to  the  Anglican  common 
law  were  notably  conceded  by  Dr.  Duck  in  1649, ^  a  concession 
subsequently  assailed  with  great  virulence.  Sir  William  Jones, 
whose  fame  as  a  scholar  increases  daily,  termed  it  "  the  source  of 
all  our  English  laws  that  were  not  of  feudal  origin." ^  Ample 
amends  are  now  being  made  in  England  for  past  neglect.  The 
late   edition   of   Bracton's   Commentaries   published   under  the 

•  Duck'«  (Je  aiitlwrUafe  juri<i  civilin.  Lib.  11.  Cap.  VIII. 

"^  Lord  TeignmouthV  Memoirs  of  Sir  Wm.  Jonet;,  Vol.  II.,  p.  168. 


31 

direction  of  the  Master  of  the  Kolls  and  edited  by  Sir  Travers 
Twiss  has  enabled  American  lawyers  to  have  easy  access  to  a 
fundamental  treatise  of  the  common  law,  but  the  common  law 
identical  with  the  Roman  law.  Savigny  is  said  to  have  derived 
great  assistance  from  Bracton  in  writing  his  "  History  of  the 
Roman  law  in  the  Middle  Ages."!  Through  Professor  Guter- 
bock's  work  on  Bracton's  relations  to  the  Roman  law,  familiar  to 
most  Americans  in  consequence  of  Mr,  Brinton  Coxe's  excellent 
Philadelphia  edition,  we  had  long  known  the  resemblance  Brac- 
ton bore  to  Azo's  Summa  on  the  Code  and  Institutes  of  Justin- 
ian, but  in  Sir  Travers  Twiss'  edition  of  Bracton  we  have  the 
parallel  text.  It  is  too  late  to  maintain  that  any  mere  arrange- 
ment of  a  private  law  of  a  civilized  nation  contains  more  political 
danger  than  another  arrangement  of  the  same  law.  Danger  lies 
below  the  surface.  If  any  lesson  whatever  is  to  be  drawn  by  us 
in  New  York  from  the  consolidation  of  the  Roman  law  under 
Justinian,  it  is,  as  Mr.  Field  has  asserted,  favorable  to  a  codifica- 
tion of  the  law  of  Xew  York.  That  the  compilations  of  Justin- 
ian diifer  wholly  from  modern  English  conceptions  of  codification 
cannot  be  denied.  Their  lack  of  scientific  arrangement  was  so 
great  that  Leibnitz  proposed  to  re-arrange  ^  the  entire  Corpus 
iuris  and  Pothier  earned  the  title  of  pavdectarum  restitutor  feli- 
cissimus  by  his  re-arrangement  of  the  Pandects.  It  would  be 
extremely  curious  if  the  codal  legislation  of  another  age  and 
nation  could  serve  as  a  model  for  this  country  of  to-day.  Yet,  as 
will  hereafter  be  pointed  out,  Mr.  Field  has  not  substituted  novel 
arrangements  where  several  ages  and  nations  have  demonstrated 
the  utility  of  a  particular  model.  In  this  respect  he  is  at  variance 
with  the  radical  notions  of  several  amateur  codifiers. 

It  is,  no  doubt,  unnecessary  to  attempt  to  refute  in  detail  the 
too  wide  assertions,  that  the  modern  specimens  of  codification, 
adopted  by  France  and  Germany,  are  practical  failures,  and  that 
the  motive  which  led  to  their  adoption  was  purely  dynastic  or 
imperialistic  but  not  reformatory ;  for  if  these  assertions  had  con- 
formed wholly  to  the  facts  they  would  not  be  even  argumenta- 
tive of  the  result  or  motive   which   attends  codification  in  this 

'  Tomkins'  Inst.  Bom.  Law,  Intd.  2,  note. 

2  Leibnitz,  Xova  Methodus  Difcend.  et  Docend.  Inris.  Pars  II,  c.  So,  90. 


32 

State.  Yet  as  such  assertions  when  uttered  by  a  gifted  and 
respected  lawyer  of  mature  experience  may  be  damaging  to  the 
pending  reform,  it  is  proper  to  supply  certain  facts  in  this  con- 
nection which  are  not  noticed  in  the  course  of  Mr.  Carter's  paper, 
premising  the  argument  upon  the  historical  parallels  is  by  no  means 
a  new  one  in  code-discussion,  having  been  repeatedly  and  exhaus- 
tively made  upon  all  sides. 

Codification  in  France,  while  accomplished  under  the  First 
Napoleon,  had  been  mooted  at  intervals  from  the  reign  of 
Louis  XI.  At  the  time  it  was  adopted  the  measure  had  long 
had  the  sanction  of  French  jurists  and  statesmen,  owing  to  the 
fact  that  in  France  prior  to  1Y89  there  was  such  an  immense 
number  of  separate  systems  of  jurisprudence  as  to  fairly  justify 
Voltaire's  mot,^  that  a  traveler  in  that  country  was  compelled 
to  change  laws  as  often  as  he  changed  horses.  This  fact,  as 
well  as  the  careful  and  scientific  mode  in  which  Kapoleon  caused 
the  commission,  appointed  for  the  purpose,  to  investigate  the 
entire  subject  of  codification,  and  the  subsequent  discussion 
which  ensued  upon  every  sentence  of  the  French  codes, ^  pre- 
clude the  attribution  of  sinister  motives  only  to  Napoleon's  pro- 
tectorate of  the  French  codes.  The  assertion  that  the  French 
codes  were  imperialistic  in  design,  tendency  and  character  was 
long  ago  made  and  refuted  in  this^State.  In  1814,  Mr.  Rodman, 
then  a  23rominent  member  of  the  metropolitan  bar,  stated  in  an 
introduction  to  his  edition  of  the  Commercial  Code  of  France,  as 
follows  :  "  The  notion  entertained  by  many  people  in  this  country 
that  this  system  of  laws  "  (the  French)  "  is  wholly  founded  upon 
arbitrary  power  and  consequently  affords  no  security  to  the  rights 
of  persons  or  the  enjoyment  of  property  is  equally  erroneous 
and  absurd  *  *  *  *  The  excellence  of  laws  as  they  respect 
the  nmtual  relations  and  the  multifarious  commerce  of  men  in 
society  depends  much  more  upon  the  enlightened  views  and  the 
wisdom  of  the  lawyers  than  upon  the  nature  of  the  government 
or  the  freedom  of  the  people." 

It  may  be  quite  true  that  the  French  have  not,  as  asserted  by 
some  writers,  hit  upon  the  best  plan  of  codification  and  that  the 

1  Encjrc.  Brit.  Tit.  "Codes." 

2  Motifs  et  Discwirs  du  Code  Civil. 


33 

separation  of  the  laws  relating  to  commerce  is  a  deviation  from 
logical  methods  of  codification,  and  yet  there  are  reasons  for  con- 
cluding that  the  supposed  scientific  tests  do  not  all  apply  to 
France  by  reason  of  local  conditions  not  fully  observed  by  the 
scientific  writers.  One  reason  for  the  latter  conclusion  is  that  the 
French  codes  have  proved  most  satisfactory  in  the  actual  adminis- 
tration of  the  Frencli  system  of  laws.  Another  reason,  pointing 
in  the  same  direction,  is  that  the  French  codes  have  taken  deep 
liold  in  most  of  the  European  countries  adjacent  to  France.  The 
Italian  government,  to  the  conceded  fairness  of  whose  jurists  this 
country  frequently  appeals,  has  lately  adopted,  with  some  modifi- 
cations, the  French  codes.  In  a  consideration  of  the  French 
codes  it  is  not  safe  to  rely,  as  Mr.  Carter  does,  upon  isolated 
English  opinion.  The  American  authorities  upon  the  merits  of 
the  French  codes,  such  as  Edward  Everett,  for  some  time  minister 
to  France,  and  John  liodman,  whose  magnum  opus  was  a  transla- 
tion of  these  very  codes,  are  certainly  quite  equal  in  this  respect 
to  either  Austin  or  Amos,  quoted  by  Mr.  Carter.  Mr.  Rodman's 
candid  verdict,  after  a  most  minute  examination  of  the  entire 
text,  was  embodied  in  these  words  "  the  code  Napoleon  is  unques- 
tionably a  work  of  the  highest  merit,  whether  we  consider  the 
pure  morality,  the  sound  legal  principles  and  enlightened  reason 
which  pervade  every  part  of  it,  or  the  lucid  order,  precision  and 
method  with  which  the  matter  is  arranged  and  exhibited."^  It  is 
impossible  to  concede,  in  view  of  the  remark  lately  made  by  an 
English  barrister,  Mr.  Mosely,  in  the  London  Law  Magazine  and 
Review,  2  that  the  state  of  the  French  law  has  received  consider- 
able attention  in  England,  or  even  enough  to  enable  a  foreigner 
to  speak  with  authority  upon  its  inherent  forces  and  defects,  Mr. 
Mosely  states  :  "  It  is  a  fact  not  to  be  ignored  that  in  carrying  on 
the  amendments  of  our  law  (in  England)  too  little  regard  has 
hitherto  been  paid  to  those  systems  which  prevail  amongst  con- 
tinental nations,  and  in  this  respect  our  legal  reformers  have  justly 
laid  themselves  open  to  comment."  He  proceeds  to  designate 
the  points  in  the  French  administration  of  law  which  are  superior 
to  the  English. 


1  Rodman's  Com.  Code  of  France.    Such  also  was  Edward  Everett's  verdict,  20  N.  A. 
Review.  393. 

2  November,  1883. 


34 

Not  oulj  is  it  doubtful  whether  the  motive  of  the  French 
codification  is  correctly  surmised  by  Mr.  Carter,  but  whether  the 
complaints,  quoted  by  him,  concerning  the  state  of  juristic 
literature  in  France  after  the  codes,  are  well  founded.  Both 
Austin  and  Amos,  who  originally  made  the  complaints  in  ques- 
tion, seem  to  have  overlooked  the  fact  that  when  any  body  of  law 
is  systematized  the  inevitable  tendency  of  juristic  literature  is  to 
take  the  form  of  a  commentary  on  the  code.  The  motive  for 
the  great  number  of  special  treatises  on  various  topics  ceases, 
and  literary  activity  naturally  addresses  itself  to  the  actual 
state  of  the  law.  Such  was  the  tendency  largely  among  the 
Romans  after  the  edict  had  been  consolidated  and  such  has  been 
the  case  in  France  since  the  adoption  of  the  codes.  Writers  in 
favor  of  codification  see  in  this  literary  tendency  a  very  great 
advantage  and  not  the  disadvantage  prophesied  by  Mr.  Carter, 
the  extinction  of  the  "  gladsome  light  of  jurisprudence  "  as  he 
poetically  phrases  it.  That  codification  would  extinguish  all 
but  the  considerable  institutional  treatises  of  the  common  law  is 
possible,  but  it  is  feared  not  probable  ;  existing  works  are  too  full 
of  concrete  examples.  But  should  all  but  a  score  of  the  legal 
treatises,  produced  in  the  last  century  in  the  United  States,  dis- 
appear forever,  no  irremediable  harm  would  be  done.  Chancellor 
Kent  when  asked  what  made  him  a  great  lawyer  is  said  to  have 
epigrammatically  replied  "  lack  of  law  books."  When  his  career 
began  books  were  comparatively  few  but  these  he  knew  well.^ 
Another  of  New  York's  great  lawyers  is  said  never  to  have  used  any 
but  old  editions  of  the  treatise-writers,  preferring  to  split  hairs 
for  himself  from  general  principles  and  not  from  the  concrete 
instances  of  application  given  by  the  editors.  At  present,  as  Mr. 
Pollock  has  said,  there  are  a  number  of  treatises  upon  the  common 
law,  good,  bad  and  indifferent,  overlapping  each  other,  defying 
all  system,  and  entirely  omitting  many  things  we  desire  to  know. 
The  advantage  of  a  new  departure  will  be  that  the  time  of  the 
writer  "  now  devoted  to  a  laborious  and  often  barren  collection  of 
authorities  will  be  left  free  for  rational  explanation.''  Mr.  Carter 
is  quite  too  sanguine  if   he  has  the  slightest  apprehension  that 

1  Chancellor  Kent's  fancy  for  the  text  of  the  Corpus  iuris  civilis  and  his  dislike  of  its 
modern  commentators  were  also  freely  avowed  in  a  letter  to  Mr.  Schmit. 


35 

juristic  literature,  such  as  we  have,  will  "  wither."  The  only 
change  that  may  possibly  come  to  it  by  the  contemplated  altera- 
tions in  the  foi-m  of  the  law  must  be  for  the  better,  and  in  the 
direction  of  that  system  and  elegance  which  all  persons,  except 
some  "case-fettered"  lawyers,  concede  to  be  the  present  charac- 
teristic of  most  American  and  English  law  books.  ^ 

A  comparatively  recent  writer  in  the  Scottish  Journal  of 
Jurispnidence^  enables  the  English  reader  to  detect  that  the  argu- 
ment against  the  motive,  character  and  result  of  codification 
in  Germany  is  also  unsound.  This  writer  deplores  the  lack  of 
German  legal  material  in  the  English  public  libraries;  the 
deficiency  which  was  then  true  of  England  is  still  true  here  ;  so 
much  so,  that  a  gentleman  familiar  with  the  state  of  the  law  in 
Germany  was  recently  compelled  to  make  the  condition  of  a  paper 
on  German  legal  bibliography  a  visit  to  the  law  libraries  of  Ger- 
many. The  late  treatise  by  Messrs.  Tompkins  and  Jencken  on 
Modem  Roman  Law  has  done  something  toward  accurately  famil- 
iarizing English  readers  with  the  condition  of  law  in  Germany, 
but  its  scope  necessarily  limits  its  usefulness  as  an  authority  on 
the  results  of  codification  in  Germany.  Since  Austin's  day^  great 
progress  has  been  made  by  the  Germans,  and  his  remarks,  quoted 
by  Mr.  Carter,  hardly  hold  good  at  the  present  time.  The  litera- 
ture of  the  Germans  upon  the  subject  of  codification  is  very  full. 
The  well-known  dispute  which  arose  between  Savigny  on  the 
one  side  and  Thibaut,  Gans,  Puchta,  Rudorf  and  Thaden  on  the 
other,  when  it  was  proposed  to  codify  the  entire  common  law  of 
Germany,  has  afforded  to  English  and  American  opponents  some 
of  their  best  material ;  much  of  it  having  filtrated  its  way  into 
English  soil.  Yet  little  accurate  information  can  be  afforded  by 
the  consideration  of  the  extreme  views  of  either  of  these  parties  ; 
both  views  are  now  conceded  to  contain  elements  of  profound 
truth  and  of  profound  error.  Savigny's  party  was  greatly  weak- 
ened by  the  secession  of  Wamkoenig,  his  most  considerable  fol- 
lower.   Now,  even  the  arguments  against  codification  of  Savigny 

1  In  this  suggestion  there  is  no  disposition  to  speak  lightly  of  the  thousands  of  useful 
books,  repositories  of  much  industry  and  reflection,  which  load  the  shelves  of  the  law  libraries  ; 
but  rather  to  intimate  that  it  may  be  ihat  the  days  of  their  usefulness  is  over,  when,  as  Emerson 
said,  "  men  must  die  in  the  first  alcove." 

2  For  1873. 

3  He  wrote  about  a  half-century  since. 


36 

himself,  are,  by  reason  of  his  transcendental  conception  of  law, 
said  to  be  better  fitted  to  a  system  of  planetary  jurisprndence 
than  to  that  of  this  sphere.  Violent  as  this  witticism  is,  it  must 
be  conceded  that  the  very  obscurity  in  which  Savigny  enveloped 
his  aro-uments  has  been  a  successful  hindrance  to  complete  codifi- 
cation in  Germany,  although,  at  last,  the  spell  of  his  mighty 
name  has,  by  the  persistent  refutations  of  his  opponents,  been 
broken. 

The  extraordinary  confusion  of  the  law  of  Prussia  in 
Frederick  the  Great's  day — for  until  1848  a  single  commercial 
bill  would  sometimes  fall  under  half-a-dozen  rules  of  law  within 
a  comparatively  small  circuit — gave  that  philosophically  in- 
clined m6narch  a  sufficient  motive  for  amending  the  form  of  the 
law.  It  cannot  be  admitted  by  the  friends  of  law  reform  that  even 
that  sovereign's  motive  for  codification  was  dynastic,  although 
what  his  motive  was  is  inconsequential :  But  they  cannot 
believe  that  any  dynast  in  his  senses  would  tie  down  the  judges 
of  his  own  creation  to  philosophic  laws  arranged  in  a  code 
and  thus  put  it  out  of  his  power  to  dictate  judicial  decisions 
in  some  concealed  fashion.  That  Frederick  the  Great  hap- 
pened to  give  the  first  regular  impulse  to  codification  in  Germany 
must  be  admitted,  just  as  it  must  be  admitted  that  he  met  with 
disheartening  opposition  from  the  unphilosophic  lawyer-class 
of  the  Pnissia  of  that  day.  Under  his  successor,  Frederick 
William  II.,  the  "  Landreclit^'''  a  complete  codification  of  the 
common  law  of  the  whole  Kingdom,  was  promulgated,  leaving 
in  force,  however,  the  ins  particulare  of  the  various  provinces. 
In  other  German  -  speaking  States  codification  has  ensued: 
Notably,  the  Austrian  Gezetsbuch  in  1811  and  the  Saxon 
Gezetsbuch  in  1865.  In  Baden  and  the  Rhine  Provinces,  the 
Code  Napoleon  was,  with  scarcely  any  alteration,  adopted.  The 
comparatively  recent  promulgation  foi-  the  entire  German 
Empire  of  the  three  codes  relating  to  bills  and  notes,  commerce 
and  crimes,  as  well  as  the  great  refonns  in  tlie  law  relating  to 
landed  property,  induces  the  party  of  progress  in  Germany  to 
hope  that  the  commission  now  sitting  for  that  purpose  will,  at 
no  distant  day,  report  a  codification  of  the  entire  law,  thus 
completing  a  reform  so  full  of  difficulty  by  reason  of  the  lack 


37 

of  a  central  influence  during  the  formation  of  the  ins  particu- 
lare  of  the  Provinces  and  States  now  composing  the  German 
Empire.  ^ 

Mr,  Carter's  strictures  regarding  the  results  of  codification 
of  the  private  law  of  Louisiana  and  California,  alone,  of  his 
historical  parallels,  remain  to  be  noticed.  It  would  not  be 
strange  if  it  had  been  the  fact,  that  codification  had  failed 
and  failed  utterly  in  Louisiana,  a  country  subjected  within  less 
than  a  hundred  years  to  the  political  domination  of  three  powers, 
each  possessing  a  different  language  and  a  different  jurisprudence. 
That  it  has  not  failed  is  perceived  by, the  persistent  retention  of 
a  code,  largely  foreign  in  composition  and  origin,  by  the  now 
dominant  American  element  in  Louisiana.  Had  this  element  not 
perceived  the  advantage  of  a  lucid  and  simple  form  of  the  law, 
they  would  long  since,  in  accordance  with  the  law  of  nations, 
have  substituted  the  law  of  the  dominant  people  ;  and  it  is  well 
known  that  shortly  after  the  annexation  of  Louisiana  such  a  sub- 
stitution was  proposed.  To  any  one  familiar  with  the  disposition 
of  the  various  races  of  people  in  Louisiana,  and  especially  at 
the  metropolis,  New  Orleans,  it  will  not  appear  strange  that, 
in  the  course  of  the  trial  of  cases  not  precisely  provided  for 
by  the  code,  each  element  of  the  population,  by  its  proper 
agent,  appeals  Xp  the  more  familiar  or  favorable  analogies, 
presented  by  any  recognized  sj^stem  of  jurisprudence.  It  may 
be  true,  without  affecting  the  merits  of  the  question  of  codi- 
fication at  large,  that  the  purely  American  element,  fully 
represented  at  the  bar,  now  appeals  most  frequently  to  the 
familiar  analogies  of  the  Anglican  common  law,  as  it  is  the 
substratum  of  the  lex  mercatoria  of  Louisiana  as  well  as  the 
ultimate  standard  of  her  supreme  appellate  tribunal.  Cej'tainly 
neither  the  fact  of  the  present  reference,  in  many  Louisiana  cases, 
to  the  common  law  of  the  prevailing  Anglo-American  type,  nor 
the  criticism  by  a  single  Louisiana  judge  of  the  hardship  of 
the  thirty-five  definitions  contained  in  the  Louisiana  code,  make 
out  a  strong  case.  The  truth  is  that  the  people  of  Louisiana 
are    better    satisfied  with    the    law   contained    in   their    code 

1  "  Law  Reforms  in  Germany,"  XVllI.,  Am.  L.  Rev.,  801,  811. 


38 

than  with  the  law  which  is  not  in  accord  with  it.  The 
native  element  in  Louisiana,  and  that  is  the  best  element, 
is  a  code-respecting  people.  Many  years  ago,  in  the  days 
of  Kent  and  Story  who  approved  it,  Gustavus  Schmit,  a 
Louisiana  lawyer  of  great  erudition,  prepared  a  short  history 
of  the  jurisprudence  of  Louisiana;  in  it  is  this  praise  of 
the  then  recent  French  reform:  "France,  whatever  may  be 
thought  of  the  rank  which  it  occupies  as  an  agricultural, 
commercial  and  manufacturing  country,  is  unquestionably,  so  far 
as  it  relates  to  the  theory  and  practice  of  its  civil  jurisprudence, 
in  advance  of  the  age,  and  can  afford  useful  lessons  to  the  rest  of 
the  civihzed  world."  It  was  this  spirit,  partly  reflected  from  this 
writer,  which  enabled  the  people  of  Louisiana  to  arrive  at  an 
ultimate  codification.  Lately,  and  after  a  long  and  adeqXiate 
trial  of  its  merits,  the  Code  of  Louisiana  appears  to  have  been 
re-enacted.  Not  only  has  it  been  re-enacted,  but  there  seems  to 
be  no  agitation  upon  the  subject  and  no  apparent  disposition  to 
substitute  that  Anglican  product  which,  with  some  modem* 
improvements,  we  have  the  honor  to  enjoy  in  this  and  most  other 
States  of  the  United  States.^ 

The  recently  published  testimony  of  the  Calif  ornian  judges  to 
the  practical  success  of  a  code  of  private  law  in  their  State,  is 
not  impugned  by  the  assertion  that  the  social  and  pohtical  condi- 
tions of  California  are  so  much  more  simple  than  like  conditions 
in  this  State  as  to  make  the  feasibility  of  codification  there  prove 
nothing  here.  The  same  form  of  assertion  has  been  made  by 
Professor  Amos  to  the  English  people  in  regard  to  the  results  of 
a  codification  in  New  York,  with  the  effect  of  permitting  one  to 
think  that  professional  gentlemen  who  have  lived  within  the 
sound  of  "  Bow  Bells"  are  not  widely  different  from  professional 
gentlemen  who  dwell  within  the  sound  of  Trinity  chimes ;  both 
liave  their  idola  fori.  The  fact  undoubtedly  is  that  social  and  po- 
litical conditions  in  California  are  not  widely  different  from  those 
with  us  in  this  State.  If  at  all  different,  those  in  California  are, 
as  the  Federal  Supreme  Court  Reports  show,  the  more  complex. 

1  Confirmation  of  tbe  general  view  stated  may  be  seen  in  a  late  paper  entitled,  "  Civil  Law 
in  Louisiana,"  by  Thomas  J.  Semmes.  Esq.  (5th  Annual  Report  of  :he  American  Bar  Asso- 
ciation, pp.  242.  siSl). 


39 

The  time  has  gone  by  when  the  newer  settlement  is  presumably 
the  more  rude :  Xew  York  started  upon  the  seventeenth  cen- 
tury with  the  accumulated  product  of  European  civilization,  just 
as  California  started  upon  the  nineteenth  century  with  all  Amer- 
ican civilization  behind  her.  Social  conditions  which  the  law 
recognizes  are  not  now  materially  simpler  here  than  in  England, 
nor  those  in  California,  materially  simpler  than  those  here.  The 
modern  basis  of  law  is  largely  contractual  everywhere,  just  as 
modern  society  everywhere  is  now  free  from  those  feudal 
restraints  upon  status  that  once  complicated  government  by 
means  of  the  various  imperia  in  imperio  which  the  general' gov- 
ernment was  forced  to  recognize  in  legal  administration.  In 
other  words,  the  mercantile  and  manufacturing  worlds  of  England 
and  America  are  not  now  essentially  different ;  what  is  law  for 
one  is  very  properly  law  for  the  other.  That  which  in  England 
differs  from  America,  relates  to  the  privileged  class  of  the  former, 
and  is  a  remnant  of  feudalism.  This  difference  is  unquestionably 
growing  less,  so  that  some  advanced  lawyers  are  already  di'eam- 
ing  of  a  universal  codification  of  the  laws  of  immovable  property. 
It  is  not  necessary  to  concede  the  feasibility  of  such  a  scheme  in 
order  to  maintain  that  there  is  nothing  so  complex  in  the  laws  of 
property  in  New  York — and  we  have  no  law  of  a  particular 
status — as  to  cause  the  Californian  code  to  be  a  solecism  here.  If 
a  code  of  private  law  works  well  in  California,  where  everything 
is  commercial  and  contractual,  it  will,  with  some  modifications, 
work  well  here,  where  everything  is  also  commercial  and  con- 
tractual, and  certainly  not  feudal,  even  the  manorial  tenures 
which  once  prevailed  in  some  of  the  river  counties  having  been 
wholly  obliterated. 

At  this  point  a  phenomenon,  not  unnoticed  by  students  of 
institutions,  may  be  emphasized — the  tendency  of  Americans  to 
adhere  to  European  legal  institutions.  There  is  scarcely  a  dilap- 
idated English  law  which,  when  well  worn  out  there,  has  not 
found  its  way  here,  and  sometimes  a  congenial  abode.  Sir 
Edward  Sugden  (Lord  St.  Leonards)  wondered  that  Americans 
could  deliberately  take  up  with  all  the  mysterious  involutions  of 
the  Enghsh  law  of  powers,  an  entirely  artificial  system  invented 
to  unloose  the  fetters  upon  the  alienation  of  English  real  prop- 


40 

erty.  Let  us  only  hope  that  a  servile  habit  of  imitation  which 
this  betokens,  will  not  restore  to  us  that  flagrant  antinomy  of 
law  and  equity,  or  special  pleading,  or  the  miserable  subterfuge 
of  the  common  law  concerning  consideration  and  seals,  or  lastly 
that  bewitching  scholasticism,  the  scintilla  juris.  What  Amer- 
icans want  is  a  rational  system  of  jurisprudence,  thought  out  by 
themselves,  possessing  fixed  bases,  and  having  its  controversial 
tendency  toward  principles  and  ethic,  and  not  to  precedents 
alone.  The  beginning  of  this  improvement  will  relate  to  the 
form  of  its  bases,  which  is  the  real  subject  of  this  paper. 

Kfaving  now  completed  a  hurried  survey  of  the  States  which 
have  had  recourse  to  codification  as  a  means  of  bettering  the 
condition  of  their  organic  law,  we  may  next  glance  at  the  theo- 
ries of  codification  prevailing  in  England  and  America.  The 
nature  of  the  dispute  as  to  the  merits  or  demerits  of  expressing 
laws  in  formulae,  is  not  new.  Students  of  philosophy  will 
recognize  a  phase  of  this  very  discussion  in  the  distinction  which 
they  draw  between  Plato  and  Aristotle.  Aristotle's  aim  was  to 
reduce  philosophy  to  science.  Plato  thought  truth  too  many 
sided  to  be  shackled  by  mere  verbal  expressions.  The  result  is 
well  known  ;  it  was  by  the  inexorable  logic  of  Aristotle  that  men 
were  first  enabled  to  detect  with  accuracy  the  true  from  the  false. 
The  party  opposed  to  codification  simply  adhere  to  the  old 
position  that  truth  is  too  many  sided  to  be  shackled ;  the  party 
of  codification  to  the  old  position,  that  certain  fundamental  prop- 
ositions of  law  may  be  so  formulated  as  to  afford  great  aid  to 
the  arrangement  and  discussion  of  the  propositions  not  formu- 
lated. 1  It  is  not  strange  that  Mr.  Field  is  unwilling  to  repeat  in 
detail  the  answers  long  ago  conceded  to  meet  the  very  objections 
now  put  forward  by  the  adherents  of  the  historical  school  of  law. 
It  must  also  be  remembered,  in  this  connection,  that  these 
answers  are  already  existent  in  the  literature  of  codification  which 
is  extremely  complete. 

In  England  the  question  of  codification  has  for  some  reason 
become  confused  with  the  discussion  concerning  the  merits  of 

1  "  Now  it  is  the  business  of  lo2;ic  to  codify,  upon  abstract  principles,  the  rules  of  scientific 
investigations."  *        *        *— 1  Fiske's  Cosmic  Philosophy,  p.  a39. 


41 

consolidation,  revision  or  other  siibstitntional  escape  from  compli- 
cations in  which  their  wide-spread  empire  helps  to  involve  them. 
The  scientific  faction  of  the  English  bar  would,  in  the  main, 
seem  to  adhere  to  a  very  highly  scientific  plan  of  codification. 
Recognizing  that  positive  laws  are  concerned  either  with  rights  or 
with  duties  they  are  engaged  in  a  discussion  as  to  whether  rights 
or  duties  afford  the  best  basis  for  a  successful  codification — a 
question  about  which  the  practical  codifiers  of  the  world  have 
wasted  very  little  breath.  .  Prof  Holland  of  Oxford,  in  some 
respects  the  most  distinguished  scientific  jurist  now  living,  has 
but  lately  succeeded  in  squaring  the  circle  of  the  jurisprudents 
by  a  distribution  of  the  entire  subject-matter  of  jurisprudence  on 
the  basis  of  rights,  a  problem  Austin  notably  failed  to  solve.  It 
ought,  at  this  juncture,  to  be  noted  that  Professor  Holland 
has  disclaimed  that  his  system  of  jurisprudence  was  ever  intended 
as  a  basis  of  English  codification.  ^  Other  persons,  however,  less 
discriminating  than  Professor  Holland,  and  imbued  with  the 
classifications  of  Austin,  Mill,  or  some  other  founder  of  a  system, 
would  make  these  classifications  the  basis  of  English  codification 
without  regard  to  the  needs  of  those  lawyers  who  must  always 
practice  their  profession  as  an  art  rather  than  as  a  science.  The 
supreme  motive  in  codification — to  subject  a  body  of  law  to  a 
form  which  best  fits  it  to  the  concrete  purposes  of  technical  law 
— is  thus  lost  sight  of  at  the  outset.  ^ 

The. practical  work  of  codification  has  always  been  performed 
by  practical  lawyers,  those  familiar  with  the  needs  of  practical 
lawyers.  They  have  generally  been  men  with  a  scientific  bent, 
but  above  all  possessed  of  some  knowledge  of  the  science  of  legis- 
lation upon  which  successful  codification  most  depends.'     By  this 

1  In  a  preface  to  his  Treatise  on  Jnrisp.  intendei  to  answer  Mr.  Tilley's  critique,  in  the 
London  Law  Magazine  and  Review. 

2  Mr.  Mill  says  :  "  The  proper  arrangement*,  for  example,  of  a  code  of  laws  depends  on  the 
same  scientific  conditions  as  the  classifications  in  natural  history."  and  he  also  says  that  & 
scientific  code  could  scarcely  have  been  constructed  before  the  days  of  the  naturalist.  Linnaeus 
— (Hilt's  System  of  Logic,  sixth  edition,  vol.  II.,  p.  28S.)  But  what  practical  lawyer  can  assent  to 
such  a  theoretical  view  of  codification  as  this  ? 

3  It  is  so  apposite,  that  the  following  pa-xsage  is  here  quoted  :  "  II  y  a  une  science  pour  leslegia- 
lateurs.  comme  il  y  en  a  une  pour  les  magistrals  ;  et  Tune  ne  resemble  pas  a  I'autre.  La  science 
du  lej:islateur  consiste  ;i  trouver  dans  chaqne  matiere,  les  principes  les  pins  favorables  au  bien 
commun  ;  la  science  du  magistral  est  de  mettre  ces  principes  en  action,  de  les  ramifier,  de  les 
etendre  par  une  application  sage  et  raisonee,  aux  hypotheses  privees  ;  d'etudier  Tesprit  de  la 
loi  qiiand  la  lettre  tue  :**  *  *  *  *  *  *  *  " 
Motifs,  Edit.  Poncelet.  Discours  Preliminaire  du  premier  projet  de  Code  Civil. 

History  also  teaches  that  in  the  Greek  states,  at  a  very  early  epoch,' the  fucctions  of  prepar- 
ing laws  were  committed  to  specially  trained  dranghtsn-.en,  vouobezai.  Ordinary  train- 
ing was  not  deemed  adequate. 


42 

assertion  it  is  not  intended  to  ignore  the  great  contributions  whicli 
the  scientific  and  speculative  writers  have  rendered  to  the  cause  of 
•codification.  It  is  for  example  easy  to  misconceive  Bentham's 
position  in  this  connection  and  to  describe  him  as  an  impracticable 
theorist  or  enthusiast,  for  in  some  respects  his  convictions  induced 
him  to  overlook  the  elements  of  stability  in  human  affairs.  Ben- 
tham  was  great,  not  as  a  constructor  of  codes,  but  as  a  scientific 
legislator.  He  was  the  greatest  master  of  the  science  of  legislation 
who  has  yet  lived  ;  a  fons  pMlosophice  from  which  all  men 
derive  something  :  "  Pillaged  by  all  the  world  yet  always  rich," 
Talleyrand  is  reported  to  have  said  of  him.  He  was  barely  a 
lawyer,  except  nominally  or  by  profession,  and  yet  nearly  every 
legislative  reform  which  he  projected  has  been  adopted  by  the 
State  and  its  wisdom  ultimately  acquiesced  in  by  all  practical 
lawyers.  An  enemy  of  feudalism  and  of  formalism  of  all  kinds, 
Bentham  is  to-day  justly  regarded  as  one  of  the  benefactors  of  the 
human  race.  It  is  not  strange  that  some  common  lawyers  are 
found  to  complain  of  Bentham  for  he  did  much  to  break  up  the 
power  of  the  sect  which  for  some  centuries  claimed  to  be  the 
exclusive  repository  of  the  common  law. 

As  it  is  easy  to  misconceive  Bentham's  relation  to  codifica- 
tion, so  it  is  easy  to  misconceive  the  position  of  Austin  and  other 
legal  writers.  Austin  is  facile  princeps  of  the  English  analyti- 
cal jurists;  but  his  personal  relations  to  codification  are  insignifi- 
cant. Possessed  of  a  keen  logical  faculty,  Austin  analysed  the 
elements  of  jurispi-udence  with  a  thoroughness  which  positively 
precludes  the  chance  of  the  reader's  misapprehending  him.  Since 
his  death  his  teachings  have  had  a  powerful  influence  upon  legal 
thought  both  in  England  and  America,  but  his  contributions  to 
codification  proper  are  comparatively  as  nothing,  consisting  of  a 
few  posthumous  fragments  of  a  tentative  character.  In  regard 
to  Professor  Amos,  Mr.  Carter's  "  free  lance,"  it  should  only  "be 
said,  as  he  is  still  living,  either  in  Australia,  Egypt,  or  England, 
tliat  he  has  seen  fit  to  indulge  in  criticism  of  all  foreign  codifica- 
tion, palliating  it,  in  the  case  of  'New  York,  with  the  pleasing  con- 
descension that  such  a  crudity  as  the  Field  Civil  Code  may  be 
well  adapted  to  the  crude  condition  of  affairs  in  this  State.  This 
■criticism  justifies  the  remark  that  there  is  nothing  in  Professor 


43 

Amos'  position,  which  entitles  his  censure  to  be  regarded  as  final 
by  Americans  ;  a  voluminous  and  highly  respectable,  though  not 
very  original/  writer,  he  is  but  a  faint  reflection  of  the  masters 
of  jurisprudence  whose  names  have  been  mentioned.  Professor 
Amos  has  published,  among  other  things,  his  own  scheme  for  a 
code  which,  though  curious  as  a  professorial  emanation  only — 
the  professorial  bent  being  usually  didactic  rather  than  construc- 
tive— is  not  remarkable.  2  In  the  region  of  practical  codification 
of  the  laws  of  England  and  her  colonial  offshoots,  of  all  men  past 
or  present,  stand  preeminent,  two  American  gentlemen,  Field  and 
Livingston,  3  and  entitled  to  be  mentioned  after  them  are 
Maeaulay,  who  drafted  the  Indian  Penal  Code,  Sir  James  Steph- 
en, who  drew  the  Indian  Evidence  Act,  Sir  John  Romilly,  Mr. 
Justice  Willes,  Sir  Edward  Ryan,  and  several  others  whose  labors, 
in  some  form,  have  taken  practical  direction.  In  the  latter  list, 
no  doubt,  should  be  comprised  Mr.  Derbigny  and  Mr.  Moreau 
Lisletof  Louisiana,  as  well  as  Diier,  Spencer,  Butler  and  Wheaton, 
the  draughtsmen  of  the  New  York  Revised  Statutes,  one  of  the 
best  and  most  influential  pieces  of  legislation  extant,  whether  we 
have  regard  to  the  reforms  it  instituted  in  the  common  law  of 
real  property,  or  to  the  general  character  of  the  revision. 

By  a  brief  examination  of  extant  codes  we  may  perceive  not 
only  that  the  best  pieces  of  modern  codification  have  emanated 
from  practical  lawyers,  but  also  that  they  have  not  been  framed 
in  strict  accord  with  the  notions  of  the  speculative  writers  on  codifi- 
cation. The  Civil  Code  of  New  York,  like  the  Code  Napoleon 
and  the  Code  Frederic,  foUows  the  order  of  Justinian's  Institutes 
and  treats  successively  of  the  law  of  persons,  of  property  and  of 
obligations.  Now  it  is  well  known  that  the  speculative  writers 
do  not  approve  of  the  arrangement  of  any  of  these  codes,  for 
they  find  in  them  a  lack  of  logical  principles  of  division,  or  clas- 
sification.    But  the  answer  to  this  criticism  is  that  the  classes  to 

1  The  Athenseum,  an  English  periodical,  eums  it  all  up  in  an  equivocal  but  discriminating 
notice  of  Prof.  Amos"  work  on  the  '■  Science  of  Politics,"  as  follows  :  "  Professor  Amos  has 
collected  a  great  many  observations  and  offered  a  great  many  opinions,  some  of  which  are 
original,  and  some  of  which  are  valuable."    v.  Fly  leaf,  Amos'  Rom.  Civ.  Law. 

2  It  must,  however,  be  admitted  that  Profe».«or  Amos  has  the  courage  of  his  convictions 
and  that  he  is  in  many  departments  a  most  pleating  and  instructive  writer  on  jurisprudence. 
It  is  fair  to  Professor  Amos'  qualification  as  a  critic  to  add  that  he  has  lately,  in  answer  to 
an  inquiry  of  one  of  Mr.  Field's  opponents,  expressed  himse.'f  as  having  entirely  changed 
his  former  opinion  of  Mr.  Field's  codes. 

3  Livingston  and  his  colleagues  are  enumerated  because  their  labors  included  a  considera- 
tion of  parts  of  the  English  common  law. 


44 

whom  codification  is  most  useful  would  not  appreciate  a  purely 
logical  principle  of  dichotomy ;  they  require  the  rougher  and  the 
more  practical  divisions  with  which  they  are,  at  a  glance,  familiar. 
In  respect  of  its  arrangement,  there  has  been  no  criticism  of  the 
New  York  Civil  Code,  except  from  such  theoretical  writers  as 
Amos.  At  least  the  anti-code  element  in  the  bar  societies  of 
New  York  has  made  none  up  to  the  present  time. 

The  truth  of  Mr.  Cartei-'s  most  sweeping  proposition,  now 
urged  against  the  Civil  Code  of  New  York,  that  all  codification 
is  unscientific  in  theory,  depends  much  on  what  is  meant  by 
scientific.  Science  is  most  commonly  referable  to  a  body  of 
knowledge  arranged  in  an  orderly  manner.  To  be  at  all  relevant 
to  the  pending  measure,  then,  this  proposition  can  only  mean  that 
in  its  present  state  the  common  law  is  better  arranged  than  in 
any  code,  or  else,  that  any  statutory  arrangement  is  unphilosophic. 
In  order  to  discuss  even  so  plain  a  proposition,  it  is  necessary  to 
be  rid  of  ambiguous  terms  and,  therefore,  to  decide  in  which  of 
its  conflicting  meanings  the  term  '  common  law,'  as  it  is  of 
extended  significance,  is  intended  to  be  used.  It  has  been  said 
that  the  best  way  to  define  'common  law'  is  by  the  things  to 
which  it  is  opposed  :  (1)  as  contrasted  with  statute  law  ;  (2J  with 
equity  ;  (3)  with  the  law  founded  on  the  civil  law,  with  the 
exclusively  local,  or  military,  law.  As  contrasted  with  all  these 
things,  it  is  the  residuum  of  a  nation's  law.  There  is  still  another 
definition  quite  opposed  to  the  former,  or  rather  inclusive  of 
the  very  things  contrasted  in  the  first  definition.  ^  In  this  latter 
or  secondary  meaning,  the  common  law  becomes  the  designation 
of  the  entire  jurisprudence  of  England,  or  of  any  one  of  it& 
colonial  offshoots.  Mr.  Carter  uses  this  term  indiilerently,  and  it 
is  therefore  necessary  to  observe  closely  in  which  sense  he  means 
it,  for  the  common  law  of  England,  in  the  larger  sense  of  the 
term,  is  in  a  faint  degree  only  identical  with  the  common  law  of 
New  York. 

In  the  original  colonies  of  England,  the  common  law  con- 
tains, independently  of  its  mere  arrangement,  an  element  of  great 
uncertainty,    wliich    it    is    thought    codification    will    entirely 


'  See  generally  Hale's  Hist'y  Com.  Law,  pp.  52-54. 


45 

obliterate.  The  common  law  of  New  York,  for  example,  owing 
to  the  colonial  conditions  under  which  English  law  was  intro- 
duced here,  is  based  upon  an  illogical  hypothesis,  most 
damaging  to  its  certainty  and  to  legal  adnunistration.  The 
hypothesis  in  question  is  that  the  common  law  of  New  York  is 
fundamentally  identical  with  the  common  law  of  England  in  the 
last  century,  in  so  far  only  as  this  latter  is  suited  to  colonial  con- 
ditions. Xow,  how  far  the  English  law  of  the  eighteenth  century 
is^  suited  to  colonial  conditions  is  one  of  the  most  perplexing 
problems  with  which  the  American  judicatories  have  to  deal.^  It 
is  not  strange  that  such  should  be  the  fact,  if  we  consider  the 
embarrassment  of  introducing  a  body  of  law  made  exclusively  for 
one  country  into  another,  far  distant  and  originally  not 
intended  to  be  included  within  its  operation.  Every  one  knows 
of  the  interest  which  originally  attached  to  Buckle's  attempt  to 
demonstrate  that  civilization  was  the  product  of  climate  and 
locality,  and  realizes  now  that  the  failure  of  the  demonstration 
was  inevn table  from  the  vast  scope  of  the  proposition.  Yet  few 
will  deny  that  jurisprudence,  a  component  of  civilization,  is  to 
some  extent  a  local  product,  and  that  its  introduction  elsewhere, 
than  in  the  land  of  its  origin,  is  full  of  embarrassment.  In  order 
to  make  more  apparent  what  is  meant  by  the  assertion,  that  the 
common  law  of  New  York  is  founded  upon  an  illogical  hypothe- 
sis, some  further  digression  must  be  condoned.  About  the  time 
that  law  of  English  original  was  being  first  introduced  by  the 
English  government  in  countries  out  of  England,  the  English 
institutional  writers  and,  for  that  matter,  many  English  judges, 
frequently  resorted  to  figurative  explanations  of  legal  phenomena. 
The  common  law,  like  the  Roman  tus  civile,  was  made  for  men 
in  a  certain  status  only  and  the  embarrassment  of  accounting  for 
the  application  of  the  common  law  in  the  English  dependencies, 
taxed  greatly  the  English  judges'  ingenuity.  With  one  accord 
they  finally  agreed  that  the  English  common  law  was 
in  force  in  the  crown  possessions  "  extra  4  (quatuor)  mare, " 
as     the     possessions     in     question    were     quaintly     described. 


1  It  is  spoken  of  in  the  present  tense,  becaise  by  a  curious  juridical  Action  the  fact  ia  being 
determined  now  retros'pectively. 

2  Meyers  v.  Gemmel,  10  Barb.  541. 


46 

because  it  was  the  "birth-right  of  English  subjects  everywhere."" 
Now  it  needs  no  examination  to  detect  that  this  assertion  is  purely 
figurative.  Sometimes  the  institutional  writers  went  farther  into 
detail  when  the  English  common  law  was  described  as  introduced 
into  uninhabited  countries,  discovered  and  planted  by  English 
subjects,  upon  the  "  birth-right "  theory,  but  into  countries  con- 
quered by  Englishmen  by  express  legislation  only.i  The  fact  is 
this  contrast  is  unsound ;  law  of  English  original  could  be  intro- 
duced into  any  countries  out  of  England  only  by  express  legisla- 
tion of  some  sort,  and  the  distinction  denoted  by  Blackstone  is 
pure  fiction.  Until  new  countries  are  subjected  to  constituted 
authority,  the  inhabitants  are  subject  to  the  law  of  nature  only, 
and  that  was  the  doctrine  of  the  earlier  English  cases.  2  After  a 
government  is  once  established  the  constituted  authority  promul- 
gates laws ;  and  in  the  case  of  the  English  colonies,  laws  of 
English  original.  Sometimes  the  legislative  machinery  has  been 
and,  doubtless,  now  is  concealed  in  the  crown-governor's  com- 
mission, or  in  his  instructions,  but  it  is  always  present  somewhere. 
The  institutional  writers  in  order  to  account  for  the  unfamiliar 
limitation  usually  contained  in  the  colonial  constitutions — that  the 
law  of  English  original  should  be  in  force  in  the  new  countries 
only  in  so  far  as  suited  to  the  new  conditions — proceeded  to 
amplify  their  theory  accordingly.  They  chose  to  regard  the 
common  law  as  "  carried  "  by  the  colonists,  but  only  so  much  of 
it  as  was  needed.  Yet  no  one  will  now  pretend  that  any  particu- 
lar colonist  carried  any  particular  law,  so  that  a  little  reflection 
enables  us  to  detect  that  the  commonly  received  account  of  the 
mode  in  which  English  laws  were  introduced  here  is  figurative.  ^ 

The  result  of  this  early  theorizing  upon  the  American  colonial 
law  has  not  been  conducive  to  certainty  in  later  legal  administra- 
tion and  in  Xew  York,  where  we  have  the  largest  body  of  sub- 
stantive law,  it  has  been  most  unfavorable.  Justice  Story,  while 
not  stopping  to  question  the  received  account  of  the  mode  in 

1 1  Bla.  Com..  108. 

2  Dutton  V.  Howell,  Shower's  Pari.  Cas.,  p.  31,  temp.  Car.,  11. 

3  In  a  series  of  a,  no  doubt,  too  desultory  observations  on  New  York  jurisDrudence  published, 
in  the  Albany  Law  Journal  (Vols.  19-20)  the  writer  of  this  paper  first  directed  critical  attention 
to  the  invalidity  of  the  Blackstonian  theory  of  extra  territarial  common  law.  He  is  pleased 
to  observe  that  since  then  Dr.  Wharton  has  given  greater  emphasis  to  the  discussion,  though 
from  other  and  often  opposite  points  of  view.  (See  Wharton's  Commentaries  on  American 
Law.  pp.  48,  102,  103}. 


47 

which  English  law  was  established  here,  pronounces  the  tlieory 
"  most  perplexing,"  because  of  the  element  of  uncertainty,  as  to- 
what  part  of  the  English  common  law  was  in  fact  in  force  here. 
He  adds,"  It  is  not  easy  to  settle  what  parts  of  the  English  law 
are  or  are  not  in  force  here  until  either  by  usage  or  judicial 
determination  they  have  been  recognized  as  of  absolute  force."  ^ 
Thus  it  may  be  seen  that  upon  any  theory  the  very  basis  of  the 
common  law  of  New  York  is,  because  of  the  particular  qualifica- 
tion with  which  its  introduction  was  originally  burdened,  a  much 
more  uncertain  quantity  than  that  of  England.  But  as  if  New 
York  was  intended  to  be  devoted  to  the  fury  of  the  infernal  gods 
who  preside  over  its  legal  institutions,  still  another  hypothesis 
comes  in  at  the  basis  of  its  particular  common  law :  The  judica- 
tm-e  of  New  York  has  long  proceeded  to  determine  what  part  of 
the  English  jurisprudence  was  in  force  here  upon  the  theories, 
contrasted  by  the  early  institutional  writers,  that  in  conquered 
provinces  the  English  law  was  imposed  only  by  legislation, 
whereas  in  newly  discovered  countries  it  was  transported  by  the 
colonists  as  their  "  birth-right."  Now  whether  New  York  is,  for 
the  purpose  of  practically  applying  this  introduction  theory,  to  be 
regarded  as  having  been  acquired  by  the  English  by  conquest, 
or  by  discovery  and  iure  occupationis,  under  the  Romanized  law 
of  nations,  the  New  York  judges  have  been  somewhat  puzzled  ta 
determine,  though  giving  the  preference  to  the  latter  view,  which, 
by  the  way,  is  exactly  opposed  to  the  historical  fact.^  New  York 
was  in  reality  conquered  by  the  English  from  the  Dutch,  but  by 
reason  of  the  extraordinary  breach  of  the  law  of  nations  which 
Charles  II.  committed  when  he  permitted  the  Duke  of  York  to  make 
war  with  the  colony  of  a  power  with  which  England  was  at  peace, 
the  English  claimed  New  York  retrospectively,  or  before  they 
had  taken  it,  and  as  having  belonged  to  them  originally  by  dis- 
covery and  prior  occupancy.  Curiously  enough  this  old  historical 
dispute  now  lurks  at  the  bottom  of  our  common  law  and  two 
centuries  later ^  puts  suitors  to  many  an  unnecessary  bill  of  costs. 
It  is  only  necessary  to  point  out  further,  that  not  only  is  the 


2  4  Pai^h   198  ;  3  Ba?b.  Ch.  123  ;  30  Barb.  14  ;  35  N.  Y.  458  ;  46 id.  141 ;  10  Barb.  544;  but  see 
cmtra   15  Johns.  93  ;  5  Wend.  436  ;  6  Hill,  177  ;  15  Johns.  115  ;  37  N.  Y.  253  ;  24  Wend.  623-24. 
Dunham  v.  WiUiams,  37  N.  Y.  251,  reversing  S.  C,  36  Barb.  136. 


48 

"Common  law  of  New  York  subject  to  the  two  local  hypotheses 
outlined,  but  it  is  involved  in  an  additional  one,  common  to  all 
the  original  American  colonies  and  provinces  :  Blackstone  in 
giving  a  concrete  instance  of  the  application  of  his  theory  of  the 
common-law  introduction  into  crown  dependencies,  cited  the 
American  colonies  as  examples  of  countries  acquired  by  con- 
quest, and  added  that  there  consequently  the  common  law  of 
England  was  set  in  force  by  express  legislation.  ^  Later  in  the 
history  of  American  jurisprudence,  when  it  became  necessary 
to  account  for  a  law  of  English  original,  which  was  wanted  for 
immediate  application,  but  the  chain  of  title  to  which  was 
obscure,  the  Supreme  Court  of  the  United  States  partially 
rejected  Blackstone's  theory ;  and  Chief  Justice  Marshall  most 
solemnly  decided  that  Blackstone  was  partly  mistaken ;  that 
America  was  not  conquered  from  the  Indians,  because  the  Indians 
had  no  national  existence  to  conquer ;  and,  consequently,  that  the 
common  law  of  England  was  to  be  regarded  as  in  force  here  upon 
the  theory  that  the  American  colonies  were  discovered  countries 
and  not  conquered  provinces.  ^ 

Such,  then,  are  only  some  of  the  mischiefs  in  the  adminis- 
tration of  a  law,  the  very  existence  of  which  is  postulated  of 
fictions.  Had  public  attention  been  directed  to  an  analysis 
of  laws  in  general,  such  a  monstrous  system  of  judicial  riddles 
would  perhaps  never  have  been  incorporated  in  the  new  State 
Constitution  which  re-adopts  the  common  law  of  the  former 
colony — a  commodity  the  colonists  could  never  determine,  and 
consequently  always  complained  of  after  the  repeal  of  the  "  Duke's 
Lawes,"  the  first  code  of  Xew  York.^  As  a  specific  instance  of 
the  mischiefs  occasioned  by  the  uncertainty  as  to  what  is,  or  is 
not,  the  common  law  of  New  York,  the  case  of  Meyers  v. 
Gemmel*  affords  fair  illustration.  Now  codification  must  ulti- 
mately cure  all  such  doubts  and  uncertainties  as  are  peculiarly 
referable  to  the  theories  just  noticed  and  substitute  therefor  a 
private  law  of  American  origin,  not  dependent  for  its  existence 

1  1  Bla.  Com.  108.     ~~~^^  ~ 

2  8  Wheaton,  573  ;  16  Peters,  409. 

3  This  code  was  a  very  complete  bo3y  of  private  law,  and  had  it  not  teen  for  the  Dutch 
element  in  New  York  it  would  have  been  an  entirely  satisfactory  babis  for  New  York  juria- 
prudence.    It  was  enacted  in  A.  D.  1664,  and  re-promulgated  in  1674. 

■•  10  Barb.,  541. 


49 

on  some  curious,  mediaeval  utterance,  expounded  and  amplified 
by  the  English  institutional  writers  into  a  theory  at  variance 
with  fact.  In  any  aspect  of  the  matter  it  may  well  be  doubted 
whether  a  common  law  predicated  of  such  a  double  uncertainty 
can  be  said  to  be  fundamentally  scientific  as  Mr.  Carter  has  seen 
fit  to  suppose  it  is. 

The  present  disposition  of  the  common  law  of  New  York  in 
reports  of  adjudications,  is  not  entitled  to  be  regarded  as  more 
scientific  than  it  would  be  if  arranged  in  a  code.  Doubtless, 
when  the  number  of  reported  cases  is  comparatively  small  no 
arrangement  in  lucid  order  is  necessary  to  the  lawyer-class; 
each  trained  person  being  able  to  supply  the  deficiency  for 
himself.  It  is  only  when  the  state  of  the  law  becomes  so  dif- 
fuse and  contradictory  as  to  defy  aU  private  attempts  at  classi- 
fication that  compendiums  and  abridgments  become  necessary 
to  lawyers.  I^ow  the  difference  between  compendiums  and  codes 
is  only  one  of  degree.  A  digest  is  an  arrangement  of  legal 
propositions,  in  alphabetical  order,  without  authority,  while  a 
code  is  a  logical,  authoritative,  statutory  arrangement.  Pro- 
fessor Holland  calls  a  digest,  an  "  imperfectly  developed  code," 
and  states,  "  that  as  compared  with  unsystematic  law  they 
stand  very  much  in  the  same  position."  It  is  unnecessary  to 
insist  upon  this  analogy  further  than  to  say,  that  it  is  scientific 
support  for  a  favorite  assertion  of  Mr.  Field's.  The  disposition 
of  the  common  law  in  digests  is  open  to  the  objection  that 
although  it  lessens  the  labor  of  the  investigator  it  leaves  the 
distribution  of  the  law  in  the  reports  open  to  its  peculiar  ob- 
jections. Strictly  speaking  the  common  law  of  Xew  York  begins 
with  the  Year-books  and  it  ends  only  with  the  Weekly  Digest. 
But  a  distribution  of  any  body  of  law  in  thousands  of  volumes 
is  certainly  open  to  grave  objections.  In  the  first  place,  the 
reports  are  most  often  contradictory  and  confusing,  and  in  the 
next  place  they  are  frequently  made  to  prove  more  or  less  accord- 
ing to  the  inductive  skill  of  the  contender — a  process  operating 
verv  harshly  upon  a  client  whose  case  is  in  the  hands  of  a  defective, 
or  careless  legal  logician.     Before  a  court  of  moderate  capacity,  a 


50 

lawyer  of  sujierior  intellect,  or  industry,  will  often  so  arrange  the 
numerous  authorities  as  to  entirely  obscure  for  the  time  being  all 
kind  of  right  disposition  in  the  court ;  thus,  oftentimes,  only  after 
an  appeal  does  the  meritorious  suitor  succeed  in  divesting  his  case 
of  the  clever  web  of  his  adversary.  Another  great  objection  to 
case-law  is  that  tlie  vast  agglomeration  of  decisions  tends  to  make 
the  law  one  of  precedent  and  not  one  of  principle ;  judges  and 
lawyers  are  so  overwhelmed  and  confounded  by  the  array  of 
authority  that  in  desperation  they  shield  themselves  behind  some 
ill-considered  precedent  without  regard  to  substantial  justice  in 
the  given  case.  But  the  main  defect,  after  all,  in  the  present 
disposition  of  the  common  law,  is  its  repressive  tendency ;  it  is 
not  conducive  to  liberal  views  concerning  the  entire  scheme  of 
the  law,  and  it  fails  to  convey  the  relation  which  isolated  groups 
of  laws  bear  to  the  entire  body  of  laws.  This  is  a  great  defect, 
for  just  as  few  specialists  are,  from  their  too  concentrated  habit, 
wholly  safe  advisers,  so  few  accurate  deductions  may  be  made 
from  cases  relating  wholly  to  one  set  of  principles.  The  reasons 
in  support  of  the  proposition  that  a  code  is  the  more  scientific 
arrangement  of  any  body  of  law,  might  be  amplified  indefinitely, 
but  if  enough  has  been  said  to  induce  the  so-disposed  to  examine 
for  themselves  the  better  authorities  on  this  question,  this  paper 
will  have  accomplished  its  mission. 

One  of  the  more  common  charges  against  codification,  repeated 
by  Mr.  Carter,  is,  in  substance,  that  it  has  a  tendency  to  promote, 
what  the  scientific  writers  term  logomachy  or  a  war  about  words, 
and  to  the  subversion  of  legal  discussion  about  principles.  If  the 
common  law  were  now  a  simple,  well-arranged  and  compendious 
body  of  law,  this  comparison  might  contain  an  element  of  truth, 
but  in  the  present  dispersed,  confused  and  contradictory  state  of 
the  reports,  augmented  by  the  habitual  citation  of  cases  of  foreign 
original — necessary  by  reason  of  the  fiction  that  the  common  law 
of  one  State  is  responsive  to  all  cases — it  is  unsound.  The  com- 
mon law  cannot,  in  its  present  condition,  be  assumed  to  be  even 
relatively  a  law  of  principles.  Its  most  elementary  principles  are 
so  impugned  and  confused  by  contradictory  and  illy-arranged 
reports  as  to  make  all  legal  discussion  a  war  about  precedents, 
with  the  result  of  entrapping  the  less  diligent  case-reader.     But 


51 

assuming  for  argument  only,  the  truth  of  the  assertion,  that  the 
common  law  is  a  body  of  principles  and  not  words,  though  it  is 
most  difficult  to  conceive  of  principles  disembarrassed  of  words, 
for  practical  purposes  a  body  of  law  should  be  more  concrete. 
The  process  of  extracting  principles,  from  adjudications,  is  a  very 
laborious  one,  requiring  the  highest  order  of  mental  effort.  In 
the  hands  of  the  unskilful  this  process  is  nearly  always  fallacious, 
inflicting  unnecessary  penalties  on  the  suitor  and  provoking  much 
unjust  litigation.  No  doubt  a  few  skilful  men  of  logical  habit, 
whose  tastes  incline  to  polemics,  are  not  displeased  with  the 
weapons  which  afford  them  such  great  opportunities  for  forensic 
triumph.  They  are  able  to  possess  themselves  of  a  great  number 
of  leading  principles  accurately  deduced  from  the  cases,  and  to 
feel  that  they  have  a  firm  grasp  of  them,  without  reference  to  a 
■code.  But  the  majority  of  the  legal  fraternity — an  exceedingly 
necessary  though  perhaps  less  conspicuous  element — have  no  such 
.satisfaction,  and  it  is  to  this  last  class  that  a  code  is  a  blessing  in 
the  times  of  doubt  and  uncertainty. 

Another  form  of  the  same  accusation,  which  is  the  subject 
of  the  preceding  paragraph,  is  contained  in  Mr.  Carter's  asser- 
tion that  the  common  law  of  New  York  is  at  present  a  law  of 
principles,  whereas  the  Civil  Code  will  be  a  law  of  language, 
with  all  the  imperfections  which  relate  to  language.  Long  ago, 
Mr.  F.  Yaughan  Hawkins  returned  a  complete  answer  to  a  pre- 
cisely similar  assertion  then  made  by  Mr.  Best,  the  well-known 
law-writer,  and  it  would  seem  proper  that  their  able  discussion 
.should  have  either  closed  this  branch  of  the  controversy  or 
have  been  recognized  as  the  basis  of  a  new  departure.  Mr. 
Hawkins  pointed  out  that  this  objection  to  codes  failed  to  note 
the  difference  between  the  earlier  and  later  stages  of  case-law : 
When  case-law  becomes  elaborated  to  a  high  degree  of  detail, 
the  function  of  the  judge  becomes  more  and  more  circum- 
scribed, until  at  last  it  ceases  altogether  to  be  so  much  the  ap- 
plication of  principles  as  a  law  of  precedents.  The  objections 
to  a  law  of  precedents  are  their  protean  character,  their  present 
bulky  and  dispersed  disposition,  and  that  they  may  be  able  to 
prove  more  or  less  according  to  the  skill  of  the  advocate,  with 
but  little  chance  of  a  court's  immediately  detecting  elaborately 


52 

constructed  fallacies.  Add  to  Mr.  Hawkins'  answer,  that  a  law 
of  principles  must  become  expressed  in  words  in  order  to  be  prac- 
tically applied,  and  the  superiority  of  case-law  vanishes  before 
the  claims  of  a  well-expressed  code.^ 

Enough  has  been  said  to  ena)|le ,  the  unbiassed  reader  to 
gather  at  least  that  those  in  favor  of  codification  differ  with 
the  conclusions  of  their  opponents,  that  codification  of  the 
common  law  will  introduce  into  the  law  either  great  en-or, 
uncertainty,  or  any  other  evil  prophesied.  Nor  will  codifica- 
tion arrest  the  spontaneous  development  of  the  common  law. 
All  writers  on  codification  agree  that  the  development  of  new 
law  beyond  and  in  addition  to  that  expressed  in  a  code  is  inev- 
itable, and  that  to  deal  with  the  new  case-law  summarily  some 
permanent  machinery  is  necessary.  In  1829,  the  revisers  of 
the  statutes  of  New  York  attempted  to  cope  with  this  very 
problem,  in  so  far  as  it  was  related  to  their  own  revision,  but 
nobody  has  ever  heeded  their  suggestions.  What  this  pei-ma- 
nent  machinery  is  to  be,  is  one  of  the  problems  in  England  of  to- 
day, but  it  is  one  with  which  this  State  need  have  no  concern, 
for  the  future  alone  can  deal  with  it.  Any  attempt  to  solve  it, 
must,  it  is  thought,  fail  because  of  the  inability  of  a  legislature 
to  allow  for  unforeseen  political  and  social  variations  of  consid- 
erable magnitude.  Entirely  new  regions  for  legislation  will  be 
discovered  and  give  rise  to  new  classifications  which  no  code  of 
to-day  can  properly  contemplate  incorporating  in  any  systematic 
manner.  The  limits  of  codification  are  the  present  and  the 
known,  not  the  future  and  the  unknown.  Mr.  Field  has  always, 
in  this  respect,  rejected  the  notions  of  his  scientific  allies,  thereby 
giving  other  evidence  of  the  eminently  practical  direction  of  his 
labors.  ^     If  the  opposition  of  Savigny  and  other  writers  who  are 

1  Mr.  Carter  approves  of  Mr.  Justice  Talfourd's  criticism  of  statute  law  as  exemplified  by 
the  enormous  nia<s  of  litiaa  ion  turninj;  on  the  Statute  of  Frauds,  without  noticing  the  unfair- 
ness of  drawing;  into  comparison  a  statute  which  almost  to  a  greater  degree  than  any  known 
statute,  enters  into  the  common  affairs  of  men.  The  wonder  is  that  the  Statute  of  Frauds  m 
so  seldom  drawn  into  controversy,  as  almost  every  contract,  excepting  the  most  petty,  are 
affected  by  it.  This  statute  certainly  has  been  a  deterrent  of  litigation,  and  its  provisions  have 
been  only  collaterally  involved  when  its  construction  has  been  invoked,  the  cause  of  action 
having  arisen  flrst. 

2  Mr.  Field  has  upon  several  occasions  expressed  his  disapproval  of  another  favorite  theory 
of  some  scientific  leuislators.  that  illustrations  serve  to  vivify  the  text  of  a  statute.  There  can 
be  no  doubt  that  concrete  instances  by  way  of  illu'tration  often  exclude  cases  which  ration- 
ally fall  within  the  spirit  of  the  statute.  When  a  statute  is  enacted  its  working  operation 
should  be  left  to  the  judicature  and  not  controlled  by  the  prevision  of  its  draughtsman. 


53 

opposed  to  codification  lias  accomplished  little,  it  has  at  least  ac- 
complished this,  the  concession  from  practical  legislator  that  they 
cannot  pretend  to  cope  with  the  codification  or  the  redaction  of 
laws  not  yet  in  being. 

It  may  be  pertinently  asked,  if  codification  neither  destroys 
the  plethora  of  law  nor  remedies  the  process  of  evolving  new 
case-law,  what  can  be  claimed  for  it  ?  No  doubt  much  is  claimed 
for  it  that  will  never  be  realized,  for  some  evils  are  incidental  to 
human  administrations  of  justice  which  is  ideally  a  Divine  insti- 
tution. But  tills  may  safely  be  claimed  for  codification :  It  will 
.  tend  to  certainty  in  legal  administration  ;  it  will  enable  us  to  re- 
move the  enormities  of  the  case-law  ;  it  will  render  the  framework 
of  the  law  more  accessible  to  the  unlearned,  and,  mainly,  it  will 
afford  more  exact  bases  for  forensic  discussion.  It  will  also  intro- 
duce simpler  methods  of  logic  instead  of  the  present  dispersed 
and  ambiguous  premises,  covered  with  the  scholia  of  the  treatise- 
writers  and  buried  in  the  text  of  centuries,  involving  complex  or 
hypothetical  syllogism  in  almost  every  closely  contested  case. 
Another  merit  may  be  and  is  claimed  for  codification — that  it  will 
ultimately  necessitate  a  higher  type  of  legislative  activity.  When 
each  amendment  or  addition  to  law  must  have  precise  reference  to  a 
skilfully  drawn  act  disposing  the  entire  body  of  law,  the  neces- 
sity of  a  permanent  corps  of  technically  educated  parliamentary 
draughtsmen  will  be  felt  by  a  sound  commercial  community  and 
being  felt  will  be  forthcoming.  ^  And,  meanwhile,  as  property, 
and  not  procedure,  is  affected  by  the  Civil  Code,  debased  legisla- 
tion will  be  arrested,  as  in  the  case  of  the  original  Eevised 
Statutes,  which  was  a  code  much  more  radical  in  character  than 
was  ever  authorized  by  the  act  naming  its  revisers.  The  articles 
of  the  Eevised  Statutes  relating  to  Powers  and  Uses  and  Trusts 
have  been  singularly  free  from  legislative  interference,  because  of 
the  great  danger  to  property  which  it  was  perceived  lurked  in 
eacn  amendment.  To  such  an  extent  has  this  policy  of  non- 
interference been  the  case  that  the  courts  have,  in  at  least  one 
instance,  been  compelled  to  reform  what  some  have  thought  the 

1  Public  attention  is  already  directed  to  this  snbject.  (See  an  admirable  paper  by  Simon 
Sterne.  Esq.,  Coaasellor  at  Liw,  before  the  American  Bar  Association,  30  Alb.  Law  Jonrn., 
p.  223.) 


54 

legislature  alone  should  have  reformed — the  article  on  Powers, 
in  so  far  as  it  was  negatively  concerned  with  limitations  of  per- 
sonal property.  1 

There  is  an  indirect  argument,  often  repeated  against  the 
adoption  of  the  Civil  Code,  to  the  effect  that  the  reforms  of  pro- 
cedure introduced  by  the  Code  upon  that  subject,  have  not  sim- 
plified procedure  but  have  been  provocative  of  much  litigation 
upon  insignificant  points  of  practice.  The  true  and  complete 
answer  to  this  negative  argument  would  be  a  very  long  one,  much 
of  it  of  an  undesirable  nature.  But  there  is  a  ready  answer 
which  may  be  briefly  outlined  :  The  details  of  the  Code  of  Pro- 
cedure were  trivial  compared  with  the  several  great  reforms  which 
it  instituted.  The  trouble  has  been  with  its  working  details 
which  were  rendered  unsymmetrical,  to  some  degree,  at  the  out- 
set, by  unfortunate  local  hostility  to  a  very  beautiful  and  com- 
prehensive draft.  The  great  merits  of  the  first  Practice  Code 
are  that  it  destroyed  the  flagrant  antinomy  of  law  and  equity  and 
that  since  its  adoption  there  has  been  no  instance  of  a  suitor's 
being  turned  out  of  a  court  unredressed,  simply  because  his- 
charges,  if  sound,  were  inartificially  expressed,  or  his  prayer  for 
relief,  if  he  were  entitled  to  any  relief  whatever,  improperly 
stated.  A  faithful  examination  of  the  politico-juridical  questions- 
connected  with  the  original  Practice  Code  will  some  day  demon- 
strate that  the  apparent  faults  which  later  invested  it,  are  not 
attributable  to  Mr.  Field.  As  to  the  conceded  reforms  which  the 
Practice  Code  instituted,  they  have  now  been  adopted  by  nearly 
all  English-speaking  States,  and  it  is  but  common  justice  to  Mr. 
Field  to  admit  that  he  has  been  most  largely  their  author,  and 
that  in  consequence  elsewhere,  if  not  here,  he  is  regarded  as  the 
most  influential  living  law-refonner.  Praise  which  long  ago  was 
conceded  to  him  by  foreigners,  is  not  gracefully  withheld  from 
him  by  his  own  countrymen  and  profession. 

The  Code  of  Procedure,  enacted  in  1848,  was,  taking  all 
things  into  consideration,  a  very  wonderful  piece  of  legislation, 
simple,  concise  and  comprehensive.  The  revolutions  it  insti- 
tiited,  the  extent  of  which  it  is  difficult  now  to  understand,  were 


1  Cutting  V.  Cutting,  86  N.  Y.,  522. 


55 

wholly,  as  every  one  knows,  in  the  laws  relative  to  pleading  and 
procedure.  Had  crafty,  debased  and  unsystematic  legislation 
refrained  from  meddling  with  the  primitive  Practice  Code,  there 
would  never  have  been  valid  cause  for  dissatisfaction  with  those 
reforms  which  Mr.  Field  originally  contemplated,  i  Indeed,  to- 
day, if  there  were  the  slightest  effort  in  the  right  direction,  the 
adjective  law  of  New  York,  with  all  the  light  of  experience, 
might  be  readily  made  the  best  instead  of  almost  the  worst  in 
the  world.  But  as  argument  is  not  made  up  of  assertions,  it  can 
only  be  stated  that  the  limits  of  this  paper  do  not  permit  that 
precise  array  of  historical  facts  which  are  necessary  to  prove  these 
particular  assertions  in  detail,  because,  and  because  only,  strictly 
speaking,  they  are  irrelevant  to  the  arguments  concerning  the 
Civil  Code.  It  is  but  necessary  to  add,  in  this  connection,  that 
the  Court  of  Conciliation,  which  was  originally  a  very  important 
part  of  Mr,  Field's  plan  for  the  reform  of  procedure,  would 
have  materially  aided  the  systematic  administration  of  law, 
and  have  greatly  cheapened  its  cost  to  the  State  by  a  diminution 
of  litigation,  a  result  that  must  have  re-acted  on  the  regular  pro- 
cedure. This  part  of  his  plan,  however,  unfortunately  failed  of 
execution. 

Isolated  English  opinion  of  the  New  York  Civil  Code  has 
been  imported  into  local  discussion.  This  is  going  a  long 
way  for  specific  authority  concerning  the  merits  of  an  Amer- 
ican statute,  but  the  journey  having  been  taken,  why  is  it 
that  the  favorable  comments  have  been  left  behind  ?  Professor 
Holland,  the  acknowledged  literary  superior  of  Professor  Amos, 
has,  in  a  very  masterly  review  of  all  the  codes  of  Christendom, 
termed  Mr.  Field's  Civil  Code  "  one  of  the  best  codes  of  modem 
times"  But  it  is  unnecessary  to  defer  to  any  of  the  English 
reviewers,  as  their  opinions  cannot  be  conclusive ;  the  very  simi- 
larities of  their  law  and  ours  misleads  them  as  to  the  extent  of 
the  dissimilarities.  While  the  writings  of  the  new  school  of 
English  jurisprudence  are  of  great  value  here,  for  philosophy  has 
no  local  habitat,  their  comments  upon  American  political  institu- 
tions, and  such  the  Code  would  be  if  adopted,  are  of  doubtful 
value  and  rarely  entitled  to  be  regarded  as  authority. 

I  See,  among  other  things,  Judge  Cady's  editorial,  6  Alb.  Law  Journal,  p.  297. 


56 

Ever  since  Mr.  Field  wrote  his  now  famous  letter  to  the  late 
Mr.  Gulian  Yer  Planck,  mapping  out,  there  and  elsewhere,  the 
first  practical  and  comprehensive  scheme  of  reform  in  the  admin- 
istration of  the  common  law,  he  has  been  justly  regarded  in 
England  by  those  who  have  paid  most  attention  to  codal  legisla- 
tion and  its  cognate  topics,  as  one  of  the  most  potent,  if  not  the 
most  potent,  of  all  those  who,  since  Bentham,  have  thrown  their 
shafts  at  the  anachronisms  and  antiquities  in  the  common  law  of 
English-speaking  peoples.  To  treat  the  first  opinion  of  Amos  as 
the  conclusive  embodiment  of  English  opinion  is  to  ignore  the 
verdict  which  their  better  sentiment  has  rendered  in  favor  of 
Mr.*  Field's  work.  But  if  all  the  critics  in  England  were  hostile 
to  Mr.  Field,  there  can  be  little  doubt  that  his  countrymen  would 
ignore  them,  for  no  Englishman  living  has  the  claim  to  distinction 
as  a  legislator  which  Mr.  Field  may  assert  if  he  would.  It  is  diffi- 
cult to  conceive  why  we  are  asked  to  defer  to  a  contrary  opinion 
simply  because  it  bears  the  impression  of  a  respectable  English 
name,  unless  it  is,  that  because  of  our  former  colonial  situa- 
tion, we  are  always  to  regard  the  Temple  as  the  Mecca  at 
which  all  things  legal  concentrate.  If  we  are  ever  to  become 
legally  as  independent  of  England  as  we  are  politically,  and  to 
rid  ourselves  of  the  bitter  sneers  of  those  who  deride  our  bor- 
rowed jurisprudence,  it  will  not  be  because  of  any  assistance 
which  Mr.  Field's  attempt  will  have  received  from  that  large  and 
influential  part  of  our  metropolitan  bar,  most  attached  to  the  his- 
torical school. 

Whatever  may  be  the  opinion  of  a  few  of  Mr,  Field's 
opponents,  conspicuous  in  the  City  of  New  York,  its  denun- 
ciations of  1!iie  Civil  Code  are  not  shared  by  persons  equally 
conspicuous  in  the  country  at  large.  In  an  address  lately  deliv- 
ered by  Governor  Hoadly  before  the  President,  Dean  and  gen- 
tlemen of  the  Yale  Law  School,  it  was  said  :  "  The  experiment  of 
"  complete  codification  has  been  twelve  years  on  trial  in  Cali- 
"  fornia.  This  code  is  also  in  force  in  Dakota.  And  this  trial 
"  has  been  attended  with  the  same  consequences  that  have  resulted 
"  from  partial,  or  Procedure  and  Penal,  codification  elsewhere. 
"  If  the  testimony  of  Judge  Sawyer  of  the  Federal  Circuit 
"  Court,  Chief  Justice  Sanderson  and  other  experts  can  be  relied 


57 

*'  on,  the  experiment  is  a  success.  Twice  has  this  great  work, 
*'  with  which  the  honored  name  of  David  Dudley  Field  is  indis- 
"  solubly  associated,  and  which  will  preserve  him  in  everlasting 
*'  remembrance,  if  not  as  the  Triboniau  of  this  age,  at  least  his 
"  precursor,  been  adopted  by  the  General  Assembly  of  New 
*'  York.  And  when  the  veto  power  is  no  longer  used  to  check 
^'  its  progress,  and  New  York  has  given  it  a  fair  trial,  not  many 
*'  years  can  elapse  before  its  adoption  in  substantially  the  same 
"  form  may  be  looked  for  in  at  least  the  majority  of  the  States." 
Referring  to  an  earlier  draft  of  the  same  work,  the  late  Judge 
Black,  an  excellent  literary  authority,  styles  it  '  as  comprehensive 
as  that  of  Napoleon,  and  as  minute  in  its  details  as  that  of  Living- 
ston.' Many  similar  testimonials  could  be  produced  were 
they  necessary  to  strengthen  the  assertion  of-  this  paragraph,  that 
the  enemies  of  the  Civil  Code  are  mainly  to  be  found  amongst 
a  few  gentlemen  denizened  in  the  City  of  New  York  and  not 
elsewherti. 

Granting  that  the  Civil  Code  is  a  meritorious  draft,  yet  its  pro- 
fessional enemies  assert  also,  that  it  may  disturb  rights  of  property, 
and  no  doubt  this  suggestion  is  made  in  good  faith  :  An  inquiry 
into  its  soundness  i*equires  us  to  first  investigate  the  source  of  the 
objection,  and  next  its  validity.  Is  .this  objection  a  disinterested 
plea  in  behalf  of  the  property  of  clients,  or  is  it  a  plea  in  behalf 
of  that  property  which  lawyers  possess  (a  small  share  of  the 
statistical  total)  outside  of  their  avocation  ?  Assuming  that  it 
may  be  in  behalf  of  both,  is  the  objection  itself  sound  ?  The 
Code  provides  that  its  operation  shall  not  be  retroactive,  while 
the  fundamental  law  provides  that  no  statute  shall  affect  vested 
rights.  Is  not  the  assumption,  then,  that  the  Civil  Code  will 
disturb  vested  rights  a  gratuitous  one,  calculated  to  work  upon 
the  known  timidity  of  capital  ?  Or,  is  the  word  "  disturb  "  to  be 
taken  in  its  untechnical  meaning  of  to  disarrange  without  neces- 
sarily injuring  ? 

The  plea  that  the  Civil  Code  may  disturb,  but  not  injure  capi- 
tal, requires  little  consideration  ;  it  is  the  purely  personal  argu- 
ment ab  inconvenienti.  Assuming  again,  for  discussion  only,  that 
this  plea  may  have  some  shadow  of  substance,  what  is  it  in 
realitv    worth  i     The   friends  of  codification    will  unanimously 


58 

reply,  very  little.  The  possession  of  capital  is  not  to  be  con- 
founded with  capital  itself,  nor  the  inconvenience  of  the  tempo- 
rary possessors  of  property  with  an  inconvenience  to  property  itself. 
To  make  this  distinction  plainer  recall,  that  the  philosophy  of  the 
classical  writers  terms  that  collection  of  rights  and  obligations 
which  inhere  in  a  man  ^  universitas  iuris.'''^  If  we  regard  the  man 
apart  from  his  bundle  of  rights  and  obligations — this  universitas 
iuris — we  shall  see  some  resemblance  between  universitas  iiiris 
regarded  objectively  and  a  corporation  or  juristic  person.  The 
fragile  man  himself  dies,  but  his  universitas  iuris  devolves 
upon  a  successor  or  successors  and  endures  indefinitely.  If 
again  we  consider  apart  those  portions  of  rights  and  obligations 
which  attach  to  a  particular  piece  of  property  we  shall  see  more 
sharply  contrasted  the  truth  of  the  distinction  denoted.  Now, 
the  laws  which  give  rise  to  these  particular  rights  and  obliga- 
tions, the  supporters  of  codification  say  are  sadly  misshapen, 
archaic  and  oftentimes  irrational,  let  us  rearrange  these  laws  in  a 
more  simple,  modem,  and  national  form.  But  the  agents  of 
capital  reply,  while  you  may  not  injure  property,  you  are 
sure  to  annoy  its  possessor;  perhaps,  expose  him  to  incon- 
venience. These,  then,  are  the  several  assertions  sharply  con- 
trasted, and  the  outcome  of  the  whole  of  them  is  the  plain  ques- 
tion— are  future  generations  to  be  laden  with  ancestral  burdens 
simply  because  the  temporary  possessors  of  capital  augur  some 
inconvenience  to  their  fleeting  and  ephemeral  possessions  in 
any  reform  in  the  too  diffuse  conditions  of  a  jurisprudence  passed 
over  the  seas  to  us  ?  The  duty  of  the  Legislature,  in  an  amend- 
ment of  the  law,  is  not  to  consider  the  baseless  fears  of  plutoc- 
racy, but  the  advantages  to  posterity  in  all  time ;  not  the  modern 
Croesus,  but  the  countless  multitudes  of  men  who  will  fill  the 
w^aste  places  of  the  world  when  the  modern  Croesus  is  no  more 
heard  of  and  when,  like  his   eponymous  hero,  and   Midas   and 

'  This  term  is  no  more  strained,  than  persona  or  ius  from  which  we  derive  our  technical 
words,  person,  justice  and  jurispnidence.  Persona  means  primarily  a  mask  and  thus  served  to 
indicate  the  rights  which  maslied  the  man  and  constituted  his  juristic  self,  or  individuality. 
So,  the  word  fvs  jus)  indicates  the  bond  which  originally  boun J  men  together,  thus  pointing  to 
the  purely  artificial  or  social  orin;in  of  all  laws.  These  primitive  meanings  of  greatly  extended 
terms  show  the  importance  in  highly  developed  societies  of  well-chiseled  or  plainly  written  laws, 
neatly  arranged,  so  that  all  men  can  see  for  themselves  their  fundamental  rights.  When  artifice, 
technicalities,  sophistries  and  over-refinements  shall  again,  as  they  must,  obscure  the  codes, 
new  redactions  will  be  necessary,  but  history  shows  these  cycles  are  farther  apart  than  is  often 
supposed  to  be  the  case. 


59 

Crassus  and  all  the  host  of  the  Claudii,  he,  too,  shall  have  joined 
the  shades.  Wise  laws  and  institutions  are  made  for  peoples,  not 
for  persons. 

That  a  considerable  body  of  lawyers  should  persistently 
adhere  to  the  traditional  form  of  the  law,  or  to  the  law  as  they 
know  it,  is  not  strange  when  we  have  reference  to  the  bias  created 
by  educational  methods  and  by  force  of  habit.  Every  avenue  to 
legal  prefennent  has  so  long  been  through  the  ancient  methods 
that  any  change  in  the  venerable  system  by  one  in  our  midst 
is  in  some  quarters  inclined  to  be  resented  as  an  affront ;  it  is 
fairly  regarded  as  an  encroachment  upon  personal  environ- 
ment. No  property  is  so  personal  as  his  law  in  the  abstract  is  to 
the  lawyer  and  its  would-be-invader  is  not  regarded  with  favor  by 
those  who,  consciously  or  unconsciously,  have  this  feeling  to  a 
marked  extent.  It  may  be  unfair  to  regard  this  as  an  element  of 
the  late  discussion  and  yet  we  must  concede  that  if  there  is  an 
opposition  without  sound  reason,  it  is  occasioned  by  bias  and  by  bias 
only.  Another  mode  of  accounting  for  unreasonable  opposition 
to  a  change  in  the  form  of  the  law,  relates  to  the  state  of  our 
juristic  literature.  This  also  is  inextricably  confused  with  the 
traditional  form  of  the  law.  When  we  reflect  how  entirely  the 
contributions  of  most  American  legal  writers  are  posed  upon  the 
antique  models,  it  is  not  extraordinary^  that  many  of  their  readers* 
preference  should  be  for  the  older  arrangement  of  the  law.  Yet 
this  feeling  cannot  be  admitted  to  be  imiversal :  Americans 
appreciate  original  contributions  to  literature.  The  Revised 
Statutes  of  New  York,  though  impugned  by  Chancellor  Kent, 
have  been  extensively  followed;  the  Field  Codes,  though 
derided    by   a    few,    have    been    widely   adopted  ^   and   loudly 

1  The  following  table  of  dates,  cnt  from  a  New  York  newspaper  some  time  since,  shows  the 
extent  to  which  Mr.  Field's  draft  legislation  has  contributed  to  the  legislation  of  the  world  : 

"  The  first  New  York  Code,  the  Code  of  Civil  Procedure,  went  into  effect  on  the  first  day  of 
July,  1848.  It  was  adopted  in  Missouri  in  1849.  In  California  in  1851.  In  Kentucky  in  1*51. 
In  Ohio  in  li-SS.  In  the  four  provinces  of  India  between  1853  and  185(5.  In  Iowa  in  18.55.  In 
Wisconsin  in  1856.  In  Kansas  in  1859.  In  Nevada  in  18R1.  In  Dakota  in  1862.  In  Oregon  1882. 
In  Idaho  in  1861.  In  Montana  in  1864.  In  Minnesota  in  1866.  In  Nebraska  in  1866.  In  Arizona 
in  1866.  In  Arkansas  in  186S.  In  North  Carolina  in  1868.  In  Wyoming  in  1869.  In  Washing- 
ton Territory  in  1861).  In  South  Carolina  in  1670.  In  Utah  in  1870.  In  Connecticut  in  1879.  In 
Indiana  in  1881.  In  England  and  Ireland  by  the  Judicature  Act  of  1873  ;  this  Judicature  Act 
has  been  followed  in  many  of  the  British  colonies.  In  the  Consular  Courts  of  Japan,  in 
Shanghai,  in  Hong  Kong  and  Singapore,  between  1870  and  1874.  Tlie  Code  of  Criminal  Pro- 
cedure, though  not  enacted  in  New  York  till  1881,  was  adopted  in  California  in  1850.  In  India 
at  the  same  time  with  the  Code  of  Civil  Procedure.  In  Kentucky  in  18.J4.  In  Iowa  in  1858.  In 
Kansas  in  1859.  In  Nevada  in  1831.  In  Dakota  in  1862.  In  Oregon  in  18&1.  In  Idaho  in  1864. 
In  Montana  in  18C4.    In  Washington  Territory  in  18C9.    In  Wyoming  in  1869.    In  Arkansas  iu 


60 

praised  for  literary  and  legislative  excellence.  Tlie  discussion 
which  lias  succeeded  to  all  these  measures  only  demonstrates, 
that  there  is  a  limitation  to  the  soundness  of  the  criticism  of 
those  who  have  grown  up  under  the  purely  traditional  methods 
of  legal  development.  1 

If  Mr.  Field's  Civil  Code  be  regarded  in  its  literary  aspect 
alone,  it  is  surely  entitled  to  respectful  consideration  from  a 
learned  profession,  for  it  is  the  most  completely  original  work 
ever  produced  by  an  American  legal  writer,  while  for  accuracy 
of  technical  expression  it  is  unquestionably  the  equal  of  any  stat- 
ute yet  drawn  in  the  English  tongue.  Singularly  enough,  the 
best  chronicles  of  Mr.  Field's  literary  labors  are  found  in  foreign 
periodicals.  Whether  this  is  due  to  oversight  on  the  part  of  his 
neighbors,  or  to  the  greater  sagacity  of  the  foreign  critical  writers, 
those  competent  to  judge  will  ultimately  determine.  That  such 
should  be  the  case  with  the  Civil  Code  is  doubtless  due  to  its 
having  received  greater  critical  attention  abroad  than  at  home. 
It  has  figured  conspicuously  in  the  legislation  for  India  and  in 
that  for  many  of  the  Western  American  States,  while  it  may  be 
seen  reflected  in  such  tentative  productions  as  Pollock's  Specimen 
Digest  of  the  Law  of  Partnership.  Nowhere  can  Mr.  Field's 
share  in  the  extirpation  of  the  former  antinomy  of  law  and  equity 
be  denied.  The  evidence  of  the  conceded  facts  then  fairly 
entitles  Mr.  Field  to  speak  on  codification  with  an  authority 
which  attaches  to  no  other  living  utterance.  But  whatever 
difference  of  opinion  there  may  be  as  to  the  expediency  of  adopt- 
ing Mr.  Field's  draft  Civil  Code,  there  ought  to  be  none  concern- 
ing the  value  of  his  contributions  to  American  legal  literature, 
for  it  is  very  great ;  greater,  by  far,  than  that  of  any  other 
practising  lawyer. 

It  is  sometimes  thought  by  conservative  men  that  the  slow 
progress  of  the  English  nation  in  the  direction  of  codification  is 

1874.  In  Utah  in  1S76.  In  Arizona  in  1877.  In  Wisconsin  in  1878.  In  Nebraska  1881.  In 
Indiana  in  1881.  In  Minnesotn  in  1883.  The  Penal  Code,  thongh  not  enacted  in  New  York  until 
1882,  was  adopted  in  Dakota  in  1805  and  in  California  in  1872.  The  Civil  Code,  not  yet  enacted 
in  New  York,  though  twice  passed  by  the  Legislature,  was  adopted  in  Dakota  18G6  and  in  Cali- 
fomia  in  1872,  and  has  been  much  used  in  the  framing  of  substantive  laws  for  India.  The 
Political  Code,  reported  for  New  York  but  not  yet  considered,  was  adopted  in  California  in 

I  Mr.  Field's  Penal  Code  and  Code  of  Criminal  Procedure,  adopted  in  New  York  in  1881,  have 
met  with  a  most  triumphant  success,  notwithstanding  the  extraordinary  opposition  which  greeted 
their  inception. 


61 

the  true  one,  but  without  reflecting  on  the  greater  uncertainty  of 
the  common  law  of  this  State,  noticed  in  one  particular  at  a  pre- 
ceding page.  The  mere  fact  that  the  Englisli  have  not  arrived 
at  a  codification  of  the  ius  privatum  division  of  their  substantive 
law  is  due  to  several  causes,  none  of  which  applj  here.  Their 
failure  is  by  no  means  equivalent  to  their  confession  that  such  a 
codification  is  either  unattainable  or  undesirable.  The  order  of 
the  changes  in  the  adjective  law  of  the  two  countries  shows  us 
that  the  English  are,  in  this  single  respect,  our  legal  debtors, 
and  if  we  choose  they  may  be  our  debtors  in  respect  of  a  codifi- 
cation of  the  substantive  law.  As  long  since  as  1851  it  was 
publicly  stated  in  England  that  the  leading  English  lawyers  were 
then  greatly  in  favor  of  radical  change  in  the  form  of  the  law. 
They  still  recognize  the  desirability  of  the  long  contemplated 
change,  but  their  plan  has  grown  with  delay,  and  is  now  far 
more  radical  than  any  thing  ever  contemplated  here,  and  conse- 
quently more  difficult  of  achievement.  They  are  meditating  a 
reform  so  extensive  in  design  and  so  complete  in  execution  as  to 
entirely  obliterate  all  laws  not  embraced  in  its  provisions.  Mean- 
while they  are  devising  means  for  so  digesting  and  arranging  the 
entire  body  of  law  as  to  enable  them  to  make  their  violent  excis- 
ions without  danger  to  the  institutions ^  they  do  not  wish  to 
utterly  destroy.  No  doubt  when  this  plan  of  codification  is 
executed,  if  it  ever  is,  it  will  be  comprehensive ;  perhaps  the 
most  so  that  the  world  has  yet  seen.  But  whether  it  will  answer 
practically  is  another  question — successful  codes  have  not  been 
highly  artificial.  Institutions  are  of  veiy  slow  growth,  and  eradi- 
cation, such  as  that  proposed  in  England,  is  often  attended  by  un- 
foreseen complications  which  are  not  incident  to  more  moderate 
reforms.  But  should  the  proposed  plan  respond  to  the  hopes  of 
the  English  reformers,  there  is  no  proof  that  it  would  answer 
here  as  well  as  the  moderate  measure  drafted  under  Mr.  Field'& 
auspices. 

England  is  a  power  most  important  materially  because  of  her 
vast '  colonial  dependencies,  and  her  legal  relations  to  the  latter 
are   regarded   by  them  as  important.     The  Temple   sends   her 

1  "  InftUluHons'^  is  used  here  in  the  wide  sense  of  the  political  writers  as  emhracing  single 
laws  of  importance,    v.  Lieber's  Civil  Gov.,  p.  300. 


62 

emissaries  to  the  colonies,  wliile  appeals  come  up  to  London  from 
the  four  quarters  of  the  globe  and  are  decided  often,  if  not 
generally,  by  laws  not  of  English  origin.  English  writers  have 
affected  to  see  in  this  reactionary  influence  of  colonial  and  Indian 
law  on  the  common  law  of  England  a  resemblance  to  the  influence 
of  the  ius  naturale  and  tlie  ius  gentium  on  the  Roman  ius  civile, 
and  have  come  to  believe  in  a  code  constructed  from  the  prin- 
ciples of  general  jurisprudence  common  to  all  countries — a  result 
which  the  teachings  of  their  analytical  jurists  had  prepared  them, 
and  to  which  their  composite  state  now  strongly  inclines  them. 
If  the  new  ecumenical  school  of  jurisprudence  can  accomplish 
a  code  which  will  answer  in  India,  at  Good-Hope,  in  Australia 
and  in  England  there  are  signs  indicating  that  it  will  not  be  un- 
welcome, and  meanwhile  the  Code  for  England  languishes  ;  com- 
mittees of  law-lords  and  distinguished  barristers  fail  to  agree  and 
like  Lord  Eldon,  after  having  doubted  for  twenty  years  on  a  case 
before  him,  i  they  still  doubt  on  the  case  before  them  and  dis- 
agree. It  is  poor  counsel  to  Americans  to  await  at  this  day  the 
result  of  pending  British  reforms,  for  the  English  have  ceased  to 
afford  us  a  parallel.  It  is  an  open  question  with  English  writers 
as  to  whether  the  English  law  proper  is  not  in  its  last,  stage  of 
development  whereas  that  of  America  must  have  just  begun. 
Narrow  as  the  difference  is  thought  to  be  and  is  in  externals,  the 
real  difference  between  the  essentials  of  English  and  American 
"jurisprudence  is  immense,  and  it  would  be  as  wise  for  us  to  wait 
for  England  before  entering  upon  an  era  of  practical  codification 
of  our  ius  privatum  as  it  would  be  to  await  the  resuscitation  of 
the  Indo-European  cult  which  has  been  jocosely  proposed  by  one 
active  partisan  of  Mr.  Carter's  committee. 

Several  other  propositions,  uttered  by  the  opponents  of  codi- 
fication, require  notice  in  any  account  of  the  discussion,  notably 
the  mystical  one — for  mysticism  is  most  dangerous  to  codification 
—  that  law  is  best  fostered  or  developed  by  leaving  it  wholly  to  a 
class  of  experts  who,  in  imperceptible  modes,  voice  "  the  national 
standard  of  justice."  This  idea  of  Mr.  Carter's  is  not  entirely  new ; 
it  is  not  very  far  from  the  theory  which  underlies  many  of  Sav- 

1  Earl  of  Radnor  v.  Shafto,  11  Vesey,  p.  453. 


63 

ignj's  arguments  and  at  first  glance  it  must  be  confessed  to  be  capti- 
vating, but  in  reality  it  is  a  plea  for  the  lawyers  and  that  law  be 
relegated  exclusively  to  them.  It  is  distinctly  opposed  to  any 
legislative  interference  with  law.  Carried  to  its  legitimate  conse- 
quence, this  mode  of  legal  development  means  a,  dominant  legal 
class,  such  as  the  jurisconsults  of  Rome,  or  the  barrister-class  in 
England.  In  a  country  where  there  is  practically  free-trade  at 
the  bar  and  where  the  safer  tendency  is  toward  that  primi- 
tive condition  when  almost  any  man  might  be  constituted 
court-agent  to  suitors,  there  can  be  no  very  consistent  develop- 
ment of  law^  outside  of  the  legislature.  The  theory  of 
democratic  States  is  that  an  exclusive  class  of  lawyers  shap- 
ing the  destinies  of  the  State  by  means  of  a  ius  prudentibus 
composiium,  is  not  desirable.  The  opposite  theory  demands  a 
highly  trained,  exclusive  class,  divided  into  factions  whose  con- 
troversy is  the  substitute  for  legislative  debate  and  whose  best 
work  demands  the  mystery  and  seclusion  of  counsel's  chambers. 
Bat  we  should  not  forget  that  the  genius  of  this  country,  -not- 
withstanding many  debased  exceptions,  has  exhibited  itself  in 
legislation.  Nearly  every  single  distinctively  American  insti- 
tution, either  in  the  region  of  public^  or  of  private  law,  is  due 
to  legislation,  not  to  the  action  of  the  judicature.  Is  not  then 
the  true  American  policy  to  perfect  that  which  is  natural  rather 
than  to  return  to  the  methods  of  either  Roman  or  Anglican  legal 
development  ? — the  more  especially  as  our  native  policy  is  con- 
sistent with  a  more  widely  spread  knowledge  of  the  law%  the 
foreign,  with  a  narrow  learning,  inevitably  tending  to  sophistries 
and  to  over-refinements. 

The  Civil  Code,  reported  as  a  legislative  bill  by  Mr.  Field,  has 
unfairly,  as  some  persons  venture  to  think,  been  the  subject  of 
adverse  criticism — criticism,  it  must  be  confessed,  occasionally 
uttered  by  gentlemen  eminent  in  the  practice  of  the  law.  But 
eminence  in  the  practice  of  the  law,  it  should  not  be  forgotten,  does 
not  alone  entitle  a  criticism  of  codification  to  be  regarded  as  final,  or 
even  as  oracular.  Codification  is  a  science,  a  science  of  the  form  of 
the  law,  possessing  a  literature  of  its  own,  quite  apart  from  ordinary 

1  The  Constitutions  in  America  are  a  species  of  legislation  and  are  supposed  to  be  subject 
to  the  ordinary  rules  of  statutes  relating  to  repeal  by  implication. 


64 

juristic  literature.  An  eminent  legislator,  Sir  James  Stephen, 
erpressed  surprise  that  a  lawyer  of  undoubted  ability  as  a  prac- 
titioner was  able,  in  a  considerable  space  of  time,  to  even  under- 
stand the  details  of  the  Criminal  Code,  his  attention  never  before 
having  been  directed  to  the  science  of  legislation.  This  surprise 
indicates,  at  least,  the  value  Sir  James  Stephen  would  place 
upon  the  off-hand  opinions  of  eminent  practising  lawyers.  The 
retort  of  the  so-called  practical  men  to  any  such  suggestion  as 
this  is,  of  course,  that  the  exponents  and  disciples  of  codification 
"  undervalue  the  teachings  of  experience."  This  retort  may  be 
true  in  some  instances  ;  it  is  in  no  degree  true  of  Mr.  Field,  and 
is  tnie  sub  modo  in  any  instance.  The  theoretical  codifiers  under- 
value the  teachings  of  experience,  no  doubt,  but  to  the  same 
extent  only  that  the  empirical  practitionere  undervalue  the  teach- 
ings of  science  and  philosophy.  If  the  purely  legal  scientist  is 
too  much  engrossed  with  his  abstractions  to  be  a  wise  legislator 
for  the  wants  of  law-men,  certainly  the  purely  practical  lawyer 
is  tao  much  engrossed  with  his  docket,  to  apt  to  gaze  at  public 
questions  from  his  office  window,  to  be  a  safe  criterion  of  the 
true  legislative  policy  of  a  State.  But  the  natural  opposition 
between  these  widely  opposed  schools  of  lawyers  is  not  new. 
We  see  it  fully  delineated  in  Cicero's  De  Legibus ;  in  his  sneers 
at  the  quibbling  trifles  of  the  practical  lawyers ;  in  his  patron- 
izing query  to  Atticus,  "  Would  you  have  me  put  forth  little 
treatises  on  Servitudes  and  Party  Walls  ?  "^  In  view  ©f  Cicero's 
defined  position,  it  is  not  strange  that  those  who  pride  themselves 
on  being  practical  lawyers,  are  induced  to  join  in  the  modem 
censure  of  Cicero,  and  to  forget  that  Cicero's  weaknesses — weak- 
nesses never  impairing  the  majesty  of  his  splendid  intellect  — 
were  external.  When  Mr.  Carter  takes  his  turn  at  Cicero's  tech- 
nical deficiencies,  it  only  exemj)lifies  how  much  human  nature  is 
alike  at  different  epochs,  for  if  Mr.  Carter  thinks  lightly  of 
Cicero's  legal  attainments, 2  it  is  equally  true  that  Cicero  thought 

1  Be  LegUnis ;  "  ut  libellos  conflciam  de  stillicifUoriun  ac  de  parietutn  iure  ? " 

2  Cicero  was  a  pupil  of  Scsevola,  the  founder  of  s^cientiflc  jurispradence,  and  no  doubt 
mastered  the  entire  |;amut  of  positive  law.  then  in  a  comparatively  narrow  compass.  This  ie 
shown  by  what  Atticus  is  supposed  to  ^ay  to  Cicero,  "  Nam  a  primo  tempore  aetatis  iuri 
studere  te  memini,  f|uum  ipse  etiam  ad  Scavolam  ventitarem,  neque  umquam  mihi  visas  es  ita 
te  ad  dicendum  dedisse,  ut  ius  civile  contemneres" — De  Leg.  I.  cap.  IV.  There  is  abundant 
evidence  to  show  that  Cicero  despi-sed  the  conventionalities  which  the  technical  anti-reform, 
lawyers  of  that  day  delighted  in,  and  that  his  position  was  deliberate. 


65 

lightly  of  the  attainments  of  the  practical  men  who,  Mr.  Carter 
intimates,  are  not  now  consulted  by  the  "  apostles  of  codification." 
This  digression  permits  one  to  further  empasize  that  the  dispute 
between  the  historical  school  of  law  and  the  philosophical  school 
of  law  is  the  creature  of  no  age  or  clime.  As  German  discussion 
relative  to  codification  shows,  the  true  standard  of  legal  progress 
is  midway  between  practice  and  theory ;  a  little  of  both,  not  too 
much  of  either.  The  mental  make-up  of  many  of  the  practical 
men  who  instinctively  resist  all  change  in  the  form  of  the  law 
and  in  legal  evolution,  would  have  induced  them,  had  they  lived 
at  an  earlier  day,  to  have  resisted  every  change  in  the  common 
law  which  the  past  two  centuries  have  effected ;  they  would  have 
delighted  in  the  barbarous  law-]ingle  prevailing  in  England  down 
to  the  reign  of  George  II.,  and  in  that  bewitching  conceit,  that 
the  seizin  to  feed  contingent  uses  by  a  scintilla  juris  was  in  mare, 
in  terra,  in  ciistodid  legis,  or  anywhere  a  disordered  fancy  could 
imagine  it.  They  would,  in  short,  have  maintained  the  old  court 
of  chancery,  even  though  its  curious  proceedings  often  absorbed 
the  entire  estate  protected,  ^  for  the  law  to  them  is  the  one  thing 
which  must  not  be  subjected  to  change ;  it  is  the  one  old  thing 
never  to  be  improved.  ^  History  shows,  in  short,  that  in  no  coun- 
try in  the  world  has  codification  been  greatly  promoted  by  lawyers 
as  a  class.  There  seems  to  be  an  indescribable  charm  in  the  modes 
to  which  they  are  accustomed,  and  an  abhorrence  of  change  of 
all  kinds.  While  this  conservatism,  doubtless,  has  the  merit  of 
adding  an  element  of  stability  to  American  institutions,  ^  it  is 
sometimes  fatal  to  progress  in  the  right  direction,  "Without 
intending  to  even  intimate  that  Mr.  Carter's  personal  objections 
to  codification  are  open  to  any  such  coarse  criticism  as  that  jnst 
here  made,  the  criticism  itself  is  not  without  force  when  applied 
abstractly  to  class-bias  and  tendencies. 

1  Phlllimore'8  Dissertation  on  Jorisp.  Intd. 
«(5oethe  says  (Faust,  Part  I,  f.  4): 

"  Your  laws  must  be  antique  to  please, 

Hereditary,  like  disease, 

Slowly  they  pass  from  race  to  race 

And  arag  themselves  from  place  to  place. 

obscure  has  grown  what  once  was  plain, 

What  was  a  benefit,  a  bane. 

Alas,  that  rights  we  should  have  none 

Save  from  our  fathers,  dead  and  gone!  " 
»Da  Tocqueville,  Democ.  in  America,  passitn. 


66 

After  open  declarations  against  the  utility  of  any  codification 
of  the  common  law,  political  expedients  have  been  resorted  to  in 
order  to  defeat  the  passage  of  the  New  York  Civil  Code.  Its  ene- 
mies have  urged  such  half-measures  as  the  propriety  of  appoint- 
ing a  committee  of  eminent  specialists,  to  be  competently  paid 
while  they  lend  their  additional  qualifications  to  the  developing 
of  a  real  code  in  fractions.  If  such  a  committee  were  appointed 
it  is  most  doubtful  whether  it  could  achieve  a  code  at  all  equal  to 
the  Field  Civil  Code,  either  in  execution  or  in  utility.  Tliibaut 
and  all  other  writei's  on  the  science  of  legislation  agree  that  a  good 
code  can  be  developed  only  under  the  auspices  of  one  master- 
mind. This  would  be  a  fortiori  true  of  a  code  wrought  by  a  com- 
mittee of  eminent  specialists,  each  accustomed  to  magnify  the 
importance  of  his  specialty,  even  if  his  concentrated  habit  had 
not  impaired  his  opportunities  for  the  study  of  the  larger  or  cog- 
nate subdivisions  of  positive  law.  In  a  republic,  the  additional 
diflBculty  in  such  a  committee  would  be  found  in  selecting  the 
Papinian^  of  the  committee,  for  it  would  be  a  fatal  admission  to 
declare,  as  the  Romans  did,  any  citizen  excellentissimo  ingenio  vir 
when  in  fact  we  know  that  in  America  all  are  equal  in  the  law. 
Neither  the  fact  that  Mr.  Field  has  been  the  master-spirit  in  the 
constraction  of  the  Civil  Code  of  New  York,  nor  the  fact  that  its 
cost  has  been  trifling  to  the  State,  are  worthy  objections  to  the 
codification  in  question.  It  is  certainly  not  strange,  in  a  country 
where  the  dignity  of  the  State  is  not  supported  by  the  outward 
condition  of  its  ministers,  that  the  best  public  work  has  not  been 
performed  by  highly  paid  commissioners.  The  Revised  Statutes 
cost  but  a  trifling  sum,  less,  indeed,  than  a  late  ponderous  revision 
of  the  municipal  ordinances  of  the  City  of  New  York.  Certainly 
its  cheapness  to  the  State  should  furnish  no  valid  argument  against 
the  Civil  Code  reported  by  Mr.  Field. 

It  is  beyond  the  province  of  this  imperfect  essay  to  attempt  to 
do  more  than  to  furnish  the  answers  usually  made,  by  a  certain 
school  of  thought,  to  such  objections  as  those  so  eloquently 
expressed  in  Mr.  Carter's  recent  paper  against  codification.  It  is 
not  purposed  to  discuss  at  large  the  value  of  the  specific  criticism 
made  by  several  lawyers  concerning  the  details  of   Mr.  Field's 

1  Justinian  mad*  Papinian  controlling  when  the  iurie  auctores  disagreed,  or  were  tied. 


67 

Code,  or  further  than  to  attempt  to  point  out  that  several  of  the 
best  of  tliese  criticisms  are  not  sound.  To  endeavor  to  do  more 
than  this  would  be  an  encroachment  on  Mr.  Field's  own  prerog- 
ative, his  able  answers  to  the  specific  objections  to  the  Civil  Code 
having  afforded  the  best  evidence  of  its  intrinsic  excellence. 

That  certain  specific  criticism  of  the  Civil  Code  is  not  sound, 
is  made  apparent  by  a  consideration  of  the  late  comments  bv  a 
distinguished  lawyer — known  tP  be  attached  to  the  historical 
school — upon  the  chapter  relating  to  "  Servitudes."  ^  It  is 
objected,  by  this  unquestionably  learned  man,  that  the  whole  sub- 
ject of '-implied  easements"  has  been  omitted  from  the  Civil 
Code,  although  since  Pyer  v.  Carter,^  it  has  attracted  great  atten- 
tion. At  the  very  time  that  this  objection  was  made,  its 
writer  either  overlooked,  or  more  likely  ignored,  the  fact  that 
Pyer  v.  Carter  had  been  expressly  overruled,  ^  having  first 
occasioned  considerable  mischief  in  England  and  in  this  country. 
The  same  error  of  reasoning  which  occasioned  "  Pyer  v.  Carter  " 
unquestionably  led  to  Judge  Selden's  florid  and  even  inaccurate 
statement  of  the  doctrine  of  implied  easements  in  Lampman  v. 
Milks, ^  and  to  a  good  deal  of  unnecessary  litigation.  ^  No  worse 
nuisance  could  be  imposed  upon  a  law  of  real  property  than  a 
refined  system  of  implied  easements,  as  every  owner  of  real 
estate  will  bear  witness.  This  particular  objection  is  not  only 
evidence,  then,  of  the  tendency  of  even  great  lawyers  to  hyper- 
criticise  a  very  meritorious  work,  but  of  the  danger  which 
attends  a  growth  of  law  by  judicial  refinements  after  a  nation  has 
once  attained  to  a  luxuriant  crop  of  case-law. 

Mr.  Carter's  o\^ti  criticism  of  the  article  of  the  Civil  Code 
relative  to  "  General  Average,"  is  astute  rather  than  generous. 
After  the  York  and  Antwerp  rules  had  been  sanctioned  by  the 
Association  for  the  Keform  and  Codification  of  the  Law  of 
Nations,  Mr.  Field  redrafted  this  article  so  as  to  make  it  conform 

1  This  objection  serves  to  show  that  the  tTaining  cf  the  technical  lawyers  induces  them,  in 
every  age,  to  attach  importance  to  much  the  same  sort  of  doctrines.  Cicero  had  a  horror  of 
the  attenuated  reflneuicnts  with  which  the  Roman  lawyers  delighted  to  surround  "Servitudes." 
So  have  all  people  who  think  as  Cicero  thought  of  tecnnical  law.  while  the  opposite  school 
attach  great  importance  to  '"implied  easements."  and  delight  in  the  involutions  of  its  doc- 
trines. 

>  1  II.  &  X.,  916. 

3  Suffleld  V.  Brown,  10  Jur.  N.  S.,  Ill;  Crossley  v.  Lightowler,  lo  Week.  Rep.,  801;  Wheeldon 
V.  Burrows,  -id  id..  196. 

4  21  N.  Y.,  p.  505. 

s  Outerbridge  v.  Phelps,  13  Abb.  N.  C,  117. 


68 

to  the  recommendation  of  the  association  of  which  he  is  so  dis- 
tinguished a  member.  1  Fnlly  versed  with  the  latest  and  broadest 
view  of  the  publicists  upon  this  subject,  Mr.  Field  was  enabled  to 
foresee  tJiat  this  branch  of  the  law  was  of  such  universal  opera- 
tion and  interest  that  petty  local  laws  must  soon  disappear.  His 
prognosis  has  already  been  fully  verified,  the  Chamber  of  Com- 
merce of  the  State  of  New  York  having  very  lately  taken  action 
through  the  Federal  Secretary  of  State  with  the  view  of  bringing 
the  law  of  this  State  into  accord  with  the  law  of  other  com- 
mercial nations.  Should  the  determined  action  of  the  Chamber 
result,  as  it  eventually  must,  in  success,  Mr.  Field's  Code  will 
consequently  need  no  additional  amendment  in  respect  of  its 
provisions  relative  to  General  Average.  ^  No  further  comment 
upon  the  specific  objections  to  the  Civil  Code  can  be  necessary  in 
order  to  induce  the  unprejudiced  to  think  that  there  is  another 
side  of  the  Civil  Code  besides  that  presented  by  its  enemies. 

But  conceding  that  the  Civil  Code  is  not  perfect,  and  it  may 
safely  be  assumed  that  no  perfect  code  will  ever  be  constructed, 
yet  a  poor  code  is  better  than  no  code.  Mr.  Frederick  Pollock 
has  well  said  "  That  the  principal  lesson  to  be  learnt  from  the 
French  codes  is  that  even  a  very  defective  code  is  far  better  than 
none."  Such  has  been  Mr.  Field's  modest  plea  for  his  own 
masterly  hand-work.  No  doubt  this  will  be  a  very  inadequate 
recommendation  to  many,  but  it  is  nevertheless  the  verdict  of 
that  actual  experience,  which '  is  asserted  to  be  so  potent  when 
invoked  on  the  other  side  of  this  code  controversy. 

The  finality  of  Mr.  Carter's  admiration  of  the  common  law  as 
it  is,  even  conceding  to  the  judiciary  establishment   a  greater 

1  Mr.  Field  lately  brought  up  a  plan  before  the  association  for  subjecting;  As^iatic  States  to 
the  Law  of  Nations. — London  Law  Mag.  and  Rev.  for  1883-4. 

2  Mr.  Carter  prints  a  letter  from  a  gentleman  whom  he  terms  "an  tminent  average 
adjuj^ter."  The  letter  itself  is  calculated  to  disturb  timid  people  to  whom  general  average  ii"  an 
occult  science.  This  letter  asserts  in  substance,  that  the  Field  Code  will  throw  this  highly 
important  branch  of  law  into  confusion.  Now  Ih"  duties  of  pure  average  adjusters  of  marine 
losses  are  largely  clerical,  and  "  General  Average '"  is  by  no  means  a  stiucture  on  which  our 
jurisprudence  depends.  The  English  Lloyds,  t  le  greatest  of  underwriters,  very  recently 
expressed  themselves  in  open  hostility  to  the  whole  system  of  "  General  average,"  recom- 
mending its  total  overthrow  and  abolition.  To  this  short-sighted  policy  statesmen  and 
juiist.s  do  not  accede,  thoueh  they  recognize  the  necessity  of  a  reform  which  takes  its  last 
expression  in  ihe  York  and  Antwerp  riile».  The  great  dissatisfaction  with  the  extraordinary 
claims  of  the  average  adjusters  ha-s  also  reached  the  courts,  and  in  Atwood  v.  Sellar,  Lords 
C'ockbuin,  Bramwell,  Baggallay  and  Thesiger,  expressed  a  very  decided  oi)inion  about  the 
anomalous  authority  of  the  "  average  adjusters,'"  overturning  one  of  their  customs  of  eighty 
years'  duration.  Is  it  not  a  fact  that  one  mode  nf  calculating  averages  rather  than  another,  is 
not  a  matter  which  is  going  to  disturb  the  foundations  of  scciety  or  evtn  of  jurisprudence  ?— 
the  whole  body  of  average  adjusters  to  the  contrary  notwithstanding. 


69 

power  of  change  than  he  would  think  consistent  with  its  func- 
tions, is  that  no  statutory  change  whatever  can  be  for  the  better. 
The  difficulty  with  the  present  state  of  the  law — and  Mr.  Carter 
admits  that  there  is  a  difficulty — is,  he  thinks,  only  with  the 
judiciary,  and  with  the  decline  in  the  character  of  legislation. 
There  may  be  room  for  improvement  in  both  the  directions  thus 
indicated,  but  far  too  much  is  laid  at  the  door  of  the  judiciary 
which  should  be  placed  elsewhere.  The  judiciary  of  the  State  of 
Xew  York  very  f  aii-ly  represents  the  bar.  Both  bench  and  bar  are 
the  result  of  traditional  methods  of  legal  education,  if  education 
that  may  be  called  which  has  been  picked  up  anywhere  and 
anyhow.  It  is  said,  for  instance,  by  those  competent  to  judge, 
that  there  is  not  a  single  institutional  treatise  on  the  common 
law  which  is  adapted  to  the  purposes  of  sound  legal  education. 
Certain  is  it  that  the  antique  mode  of  legal  training  in  vogue 
with  us,  while  it  is  not  wholly  unsuited  to  mere  practical  success 
at  the  bar,  is  not  unlikely  to  be  at  the  root  of  that  which  Mr. 
Carter  would  lay  at  the  door  of  the  judiciary  and  the  legislature. 
We  should  all  take  our  just  share  of  the  blame  which  attaches  to 
the  present  condition  of  things.  Few  of  us  can  deny  that  we 
would  not  have  profited  by  having  approached  jurisprudence  in  a 
more  scientific  fashion. 

The  school  to  which  Mr.  Field  belongs  and  certainly  leads,  in 
this  country,  thinks  that  it  perceives  the  remedy  for  the  acknowl- 
edged legal  ills,  in  the  reform  of  the  form  of  the  law,  in  simpler  and 
more  direct  legal  methods,  and  in  a  higher,  though  still  voluntary, 
type  of  legal  education.     Is  not  the  plan  worth  trying  ? 

This  is  an  era  of  legislation,  in  Europe,  in  South  America 
and  elsewhere.  Not  a  civilized  nation,  England  not  excepted, 
but  addresses  itself  seriously  to  the  work  of  codification,  and  to 
the  simplification  of  traditional  legal  methods.  Here,  as  else- 
where, codification  of  the  substantive  law  must  come.  If  it 
does  not  come  in  the  shape  of  Mr.  Field's  legislative  di'aft,  as 
there  is  no  adequate  preparation  for  a  better,  it  will  come  in  a 
less  meritorious  form,  but  it  will  come.  When  it  does  come,  the 
merits  of  Mr.  Field's  Civil  Code  will  not  be  denied,  for,  legal 
literature  has  its  own  Nemesis  who  both  punishes  the  ungener- 
ous critic  and  ignores  unjust  censure  of  honest  effort. 


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